(PSEEE: IN THE HIGH CGmT OF MABHYA FR&BESH fia- JABAI.FU&. CR3BMISAI. APPE&& HO, ^/ O? 1994, £f33 APPEELaN'E ON 13,fili- hlled /;n.."^^."^..n-t,B*i k,Sfe^lt^£s^..^t£^ ®iita^5w:.tT<i"••.-•.<-..^..•.••..-"•...Mdvocs^A.' ^ R.VD. R v t-f-.f'£T' "'< . S,jf?^**.«>t-..i RESPOBBSST •Jhaa.aB Bal ^ed25 years,/ Wife ef Bhawanlal SataaBi, by Occupat iea''; Agriealtarist, Hesident o£ Village Muiy&a» Solice Statios Naadghat, District Barg, M.P. yersus. ^ The State of Madhya Pradesh. CRIMINAI, &PPBAE TODER SEGTIOg 37412.) OjF THE CRIHIliAL PROCEBORE e©DE ; 1 HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 481 of 1994 APPELLANT JhamanBai VERSUS RESPONDENT State of Madhya Pradesh. Shri Akhtar Hussain counsel for appellant. Shri Pankaj Shrivastava PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINALPROCEDURE. JUDGMENT (16.04.2010) This appeal is directed against the judgment and order dated 21.3.1994 passed by Additional Sessions Judge, Durg Camp Bemetara, in. Sessions Trial No. 167/1990 convicting the accused/appellant for the offence punishable under Section 304-11 IPC and sentencing him to undergo rigorous imprisonment for three years. 2. Case of the prosecution in brief is that on 9.1.1989 FIR (Ex.P- 2) was lodged by Kotwar ofthe villagenamely Khamhan Das (PW-1) alleging that on 8.1.1989 he had received an information that deceasedNipa Baihad died on account of drowning in a pond. He was also informed that there was some dispute between the deceased and the appellant as a result of which the accused made the deceased drown by catching hold ofher hair. It is alleged that all this was done by the accused/appellant for the reason that the deceasedwas having illicit relations with her husband. 3. So as to hold the accused/appellant guilty, prosecution has examined 12 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which she denied the eharges levelled against her and pleadedher innocence and false implication \n,Vc\e case. Thisapart, one Itwari (DW-1) has also been examined byittiie defence in support of its case. ra _^-^^c':^^ ,/'if"s4'^>, ?' a^ ° i, "•%» s '""a s •^ %, Is-i ..*" 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. 5. Heard counsel for the parties and perused the material available on record. 6. Counsel for the appellant submits that conviction of the accused/appellant is based on the evidence of Nirmala Bai (PW-7) and Rajeshwari Bai (PW-8), the so-called eyewitnesses to the incident but if the same is given a thoughtful consideration, it appears to be totally unreliable and based on that the appellant's conviction for the offence as mentioned above cannot be sustained. According tQ him, onaccount of unfortunate deathof the deceased, the appellant has beenmade scapegoat by way offalse imptication. 7. Counsel for the respondent/State supports the judgment impugned and submits that the accused/appellant has made confessional statement before Ramkumar Satnami (PW-9) and considering the evidence of this witness and the evidence of Nirmala Bai (PW-7) and Rajeshwari Bai (PW-8), the findings of the Court convicting and sentencing the accused/appellant appear to be just and proper and call for no interference in this appeal. 8. Khamhan Das (PW-1), the village Kotwar has stated in his evidencethat on the date of incident at about 11 p.m. one Shiv Prasd and Kholu had informed him that the accused/appellant had killed the deceased. He has further stated that body of the deceased could not be traced in the night and it wastraced on the next day. Kholu(PW-2) has stated that an information Was given to him by Shiv Prasad and then he along with Khamhan Das (PW-1) had gone to the pond where he came to know that deceased Nipa Bai had died. Ram Gulam (PW-3) is the witness of inquest and seizure of broken bangles vide Ex. P-5 and that of water of the pond vide Ex. P-6. Shyamlal (PW-4) has not supportedthe caseofthe prosecution and has been declared hostile. Chandra Kumar (PW-5) is the witness of inquest Ex. P-4. Dr. R.S. Tiwari (PW-6) who had conducted the post mortem examination on the body of the <\ ^^ fe fr" ;i8%?^ K '""f K ':;^. deceased has stated that she diedas a result of drowning. Nirmala Bai (PW-7) has not supported the case of the prosecution and has been declared hostile. This witness has however stated that on the dateof incident there wassome dispute between the appellant and the deceased as the appellant had spewed her nasal discharge on the deceased. Rajeshwari Bai (PW-8) has stated that on the date of incident there was some dispute between the deceased and the appellant on account of nasal discharge being spewed by the accused/appellant on the deceased and when the deceased objected to it,the accused/appellant dragged her to the pond and 1 and % hour thereafter.she came to know that the deceased had died by drowning in thepond. In paragraph 4 of her deposition, this witness has stated that in the pond she had not seen the accused sitting over the deceased. She has stated that the aGcused/appellant made her drown in water. In cross examination this witness has stated that the stairs of the pond were slippery. Ram Kumar Satnami (PW-9) has stated in his evidence that deceased was the sister in law of the accused/appellant and when he made an enquiry from the accused/appellant, she had informed that in the pond there was some dispute between the accused and the deceased and therefore she might have made her drown in the pond. In paragraph 3 this witness has stated that one Shiv Prasad and he himself had madel an enquiry from the accused/appellant to which she replied that though there was some dispute between her and the deceased yet the deceased had falten in the pond by slipping. Dr. R.D. Sonwani (PW-10) is the investigating officer who hassupported the case of the prosecution. Rajauram (PW-11) and Shiv Prasad (PW-12) have not supported the case of the prosecution and they have been declared hostile. 9. From the aforesaid analytical discussion, it is quite clear that the prosecution has not been able to lead any cogent evidence on the basis of which convictionof the appellant undersection 304-11 IPC can be maintained as though the appellant has made extra judicial confession before RamKumarSatnami (PW-9), thiswitness has not stood firm in his statement as somewhere he has stated that! the deceased might have drowned by slipping in the pond and aa ~Til!8 -4 somewhere he has stated otherwise. None of the witnesses has stated that the deceased was made to drown in to the pond by the accused/appellant. When nothing pinpointed is there against the accused/appellant and that too when witness Ram Kumar Satnami (PW-9) has stated that the stairs of the pond were slippery, possibility of accidental death cannot be ruled out and this being the situation benefit ofdoubt has to be extended to him. 10. In the result, the appeal is allowed. Impugned judgment dated 21.3.1994 is hereby setaside. Appellant is acquitted ofthe charge levelled against him. He is reported to be on bail. His bail bonds stand discharged. Sdf- Pritinker Diwaker Judge i0st>