HiGH COURT OF CHHATTISGARH AT BILASPUR Criminal ApDealNo.23 of 1999 APPELLANT: RESPONDENT: APPELLANT: (in Jail) RESPONDENT: Present: Kumari Bai, W/o late Munna Devgan, aged 21 ysars, R/o Balbhadra Ward, Bhatap'ara, District Raipur (M.P.) (now C.G.) Versus State of M.P. (now Chhattisgarh), Through P.S. Bhatapara, District Raipur, M.P. (nowChhattisgarh) AND Crimjnal Appeal No.774 6f 2008 Mangal Singh, S/o Dhani Ram Jaiswal, Aged about 32 years, R/o Guru Nanak Ward, Bhatapara, Distt. Raipur (CG) Versus State of Chhattisgarh, Through S.M.0., Police Station Bhatapara, District Raipur,(C.G.) Shri Vishnu Koshta, counse! forthe appellant in Cr.A. No.23/99. Smt. Meena Shastri, counsel for the appellant in Cr.A. No.774/2008. Shri SandeepYadav, Deputy Govt. Advocate forthe State/respondent. Division Bench: Hon'ble Shri Dhirendra Mishra & Hon'bleShri R.N. Chandrakar. JJ. ORAL JUDGMENT (Delivered on 10 September, 2009) The following judgment of the Court was delivered by Dhirendra Mishra, ^ ^ T 1. The aforesaid appeals are being disposed of by this common judgment, as both these appeals arise out ofjudgment of convictionand order Qf sentenee dated 27-10-1998 passed bythe !earned3rdAdditJonaISessionsJudgo, Raipur, inS.T. No.55/98 whereby learned 3 Additional Sessions Judge after holding the appe!lants guiJty for commissiQn of offence under Section 302 read with Section 34 of the IPC for causing homiddal death of deceased Munna Dewangan, sentenced them to undergo imprisonment for Jife and to pay a fine of Rs.500/- each, in default of payment offineto further undergo RJ. for 1 month ea6h. 2. Indisputabty, appeilants Kumari Bai and MangaJ worked in Poha mjll at Bhatapara and were acquainted with each other. 3 The case of the prosecution, in brief, is thgf the Poiice received information through telephone on 5-10-97 around 8.30 pm that dead body of unknown person is lying in Batbhadra Ward, Bhatapara. The potice proceeded for the said place and found the dead body of a person aged about 35 years, however, the identity ofthe dead body could not be ascertained. Inquest over dead body was prepared in the presence ofwitnesses vide Ex.-P/2 and thereafter the same was sent for postmortem examination to the Community Health Centre, Bhatapara vide Ex.-P/S where Dr. R.K. Avrasthi (PW-9) conducted postmortem and submitted his report of Ex.-P/5. On subsequent investigation, it revealed that dead body was that 6f one Munna Dewangan. His wife Kumari Bai had illicit relationship with appellant Mangal. Appellants Kumari and Munna had fought with each other on account of her ilJidt relationship with Mangal Singh and because of this illidt relationship, Kumari Bai in assodation with appellant Mangal administered her husband rat poison and thereafter stranguiated him with the help of Gamcha. On the memorandum of Kumari Bai, the packet of poison and Gamcha used for strangulation were seized on 24-10-97 vide Ex.- P/12. 4 After completjng the investigation, charge sheet was fsled against the appellants in the Court of Additional Chief Judicial Magistrate, Baloda Bazar, who in turn, committed the case to the Court of Sessions Judge and the same was received on transfer for tria! by the learned Add'rtional Sessions Judge. ^ h» |N»' 5. Learned Additional Sessions Judge framed the charges against the appellants under Sections 302 read with Section 34 and 201 of the IPC. The appellants abjured their guilt. 6. The prosecution in order to establish the charges against the appellants examined 14 witnesses, thereafter statements of the accused persons were recorded in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. However, the appellants did not examine any witness in their defence. 7 After hearing leamed counsel for the respective parties, learned Additiona! Sessions Judge convjcted and sentenced the appellants as mentioned in paragraph 1 of this judgment. 8 Smt. Meena Shastn, learned counsel appearing for appellant Manga! Singh and Shri Vishnu Koshta, learned counsel appearing for appeliant Kumar Bai, vehemently argued that none ofthe circumstances relied upon by the trial Court for convicting the appellants has been independently established by cogent evidence The deceased was allegedly identified by photograph, however, no evidence to this effect has been led to estabiish identification on the basis of photograph. Even the homicidal death has not been established. 9. On the other hand, learned counsel for the State supported the impugned judgment. 10. We have heard leamed counsel for the parties. We have perused the record of the trial Court as also the impugned judgment. 11 On dose scrutiny of the impugned judgment, it appears that leamed Additional Sessions Judge has convicted the appellants on the basis of circumstantia! evidence. The drcumstances relied upon by the trial Court are as foilows:- 0) Both the appellants were working together in Rajesh Poha mill, Bhatapara at the relevant time. Munna Dewangan quarreled with Mangal Singh in the presence of his wife on the allegation that Mangal had illicit relationship with his wife Kumari Bai; (ij) After 15 days ofthe incident, appellant Kumari Bai went to Bhilai to her in-law's place in search of her husband; (iii) Mangal sought help from Sant Kumar (PW-7) and Sahdev (PW-13) for committing the murder of a person and lastly, ^; (iv) On memorandum of Kumari Bai, Gamcha used for strangulating the deceased and poison which was administered to the deceased were seized vide Ex.-P/12. 12. Unidentified dead body found on5 October, 1997 was identified on the basis of photograph ofthedead body vide identification memo of Ex.P/4, however,the same does not bear signature of a person who conducted identification. PW-8 Dayaram, brother of deceased Munna and PW-4 Gendi Baj have deposed that they identified the photograph of the dead body as that of deceased Munna Dewangan. This evidence is unchallenged in cross-examination and, therefore, the identity of the deceased as Munna Dewangan has been rightly held as established. 13. The prosecution has attempted to establish the first circumstance by examining PW-6 Ram Kumar. However, on close scrutiny of the evidence of th's witness, we find that this witness has stated in his deposition that 2-3 months before the date of his examination he saw quarrel between Munna and Mangal in the presence of appellant Kumari Bai. In the absence of proximity of the quarrel with the date ofthe inddent, it was not proper on the part of learned Sessions Judge to reach to a conclusion that the appellants had a motive to commit murder of Munna Dewangan, particulariy, when the witness a!so states that the dispute was subsided immediately thereafter. l4.To establish 2 circumstance that Kumari Bai went to Bhilai in search of her husband after 15 days of the inddent, Gendi Bai (PW-4) and Mahtaru (RA/-5) i.e. motherand father of the deceased, have been examined. The above witnesses have oniy stated that appellant Kumari Bai came to their house on 20 at the time of Diwali and enquired about Munna and after making the enquiry, she returned back. RA/-5 Mahtaru has also tried to make improvement in his evidence by saying that "you need not waste money in searching Munna", though he did not disclose this fact while giving statement to the police. Though there is no evidence available on record as to on what date the dead body was identified and appellant Kumari was interrogated only on 24-10-97 i.e. after she went to her in-law's house in search of her husband, therefore, according to our opinion, the above circumstance cannot be construed to a circumstance to connect the present appe!lants with the crime in question. ® l5.To estabiish 3 circumstance that Mangal sought he!p from Sant Kumar and Sahdev, Sant Kumar has stated that Mangal came to him and requested for some help. He has not elaborated as to the nature of the help, whereas, PW-13 Sahdev has deposed that Mangal came tp him on Monday and asked for help for committing the murder. On his refusal, he further said that he has already given 4-5 sleeping pills to a person whom he intends to murder. We are unable to understand as to how this drcumstance is connected with murder. In his evidence, there is no reference to Kumari Bai and it is farfetched to connect the above evidence by presuming that Mangal was in fact husband of Kumari Bai. 16.So far as recovery of Gamcha and poisonous substance on the basis of memorandum of appellant Kumari Bai is concerned, the witness of memorandum and seizure has not supported the prosecution case. Even otherwise, in the absence of any FSL report that poisonous substance seized on the memorandum of appellant Kumari Bai was cause of death of deceased Munna Dewangan. The above recovery at the instance of appellant Kumari Bai is of no avail. 17 Lastly, the question is - whether the prosecutlon has been able to establish the fact that the deceased died homicidal death? 18 Dr. R.K, Awasthi (PW-9), who conducted postmortem and submitted his report, has proved the postmortem report of Ex.-P/5. He opined that cause of death of the deceased appears to be due to asphyxia, however, he was not in a position to condusiveJy opine about the same and he advised to send viscera for chemical examination. The prosecution has not produced chemical examination report ofviscera. 19 !n the absence of any posltive evidence that Munna Dewangan died homicida! death, the trial Court was not justified to convict and sentence the appellants on the basis of circumstantial evidence, which have already been eiaborately dealt with in the foregoing paragraphs. 20 )n the result, the appeals are allowed. Conviction and sentence imposed upon the appellants under Section 302 read with Section 34 of the !PC are set aside and they are acquitted of the said charges. They be set at liberty forthwith unless required to be detained in any other case. Appellant Kumari Bai was granted bail vide order dated 9-8-2000. Her bai! bonds are discharged and she need not surrender. Ban/e Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge