•4S1.^£"- HIGH COURT OF CHHATTISGARH AT BILASPUR DiVlSION BENCH: HON'BLE SHR! T.P.SHARMA AND HON'BLE SHR! R.LJHANWAR. JJ APPELLANT (in Jaill RESPONDENT Criminai Appeal No. 225/2007 ^itxtUdeaf tas Singh VERSUS' State of Chhattisgarh, JUDGMENT FOR CONSIDERATION .4.2011 .4.2011 HON'BLE SHR! JUSTICE T.P. SHARMA a^ > ci^y^-ei— ^ Sd/- : T. P. Sharma Judge For Pronouncement of Judament '7 .04.2011 -^-1. .^"^. Sd/- R.L.JHANWAR Judge [1- ..•SiS^ HlGHCOURTQFCHHATTLSGARHjBiLASPUR D!VES!ONBENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRt-R.LJHANWAR, JJ. Criminat Aooeal No. 226/2007 (in iaili Gurudeep Singh, son of Shri Sohan Singh Punjabi, aged about 46 years, Resident of Station Madoda, H.S.C.L. Colony, Pofice Station Newai, District Durg (C.G.) VERSUS ' State of Chhattisgarh, Through : The Police Station Newai, District Durs (C.G.) CRiMINAL APPEAL UNDER SECTION 374 (2) OF THE CRIM1NAL PROCEDURE CODE. 1973 Appearance: Shri Ashok Dixlt, counseS for the appeliant. Shri Vfinod Shrivastava,G.a. fortheState. JUDGMENT (Passedon ^04.2011) Per R.L.Jhanwar, J. This appeal is directed against the judgment orconviction and order ofsentence dated 08.02.2005 passed in Sessions Case No. 189/2005 by 2 Additional Sessions Judge, Durg by.virtue ofwhich the appellantwasi convicted under Section 302 and 201 of the i.P.C. and sentenced to iifei imprisonment with fie of Rs.500/- and in default to undergo further one month additiona! R.l. for commjssion and to undeigo R.i. for three years| with fine of Rs.500/- in defauit to undergo R.l. for one month for commission of murder of his vifife Kumari Bai. 2. As per case of the proseeution, the appellant was suspecting the character of his wife Kumari Bai and on this he used to beat her. The deceased person Kumar Bai lodged a report against the appeliant threg days prior to date of incident. On 6.4.2005 at about 11.30 a.m. the! appel'ant assaulted Kumari Bai with axe, due to which, death of Kumari; --^ > ''^W^.ll '^.naK^ Bai took place. A.S.I. Yogendra Mishra P.W.4 received information by teiephons that a dead body of woman was lying behind the boundary wa! of B.R.P.piant. Based on this information, merg intimation was iodged firstly vide Ex.P.3 and thereafter vide Ex.P.19. After summoning the witnesses vide Ex.P.5, inquest over the dead body was prepared vide Ex.P.6. Spot maps were prepared vide Ex.P.2 and Ex.P.7. Dead body. was sent to Government HospiSai, Durg, for autopsy. Dr. S.R.Churendra P.W.7 conducted autopsy and found the following symptoms and injuries: 1. Body was swolien. Foul smel! was coming out. 2. Both eyes remain ciosed and mouth was punctualiy open. 3. Discharge ofreddish colourfluid from nostrii and mouth. 4. Tongue was caught between teeth. 5. Bruise (ante-mortem) was present at right maxillary region extending to lower eyeiid of size 4 x 3 inch with bluish colouration. 6. Bruise was present around bridge of nose with bluish discolouration ofsize 2x2 jnch on palpation bony due to depress fracture of nasal bone. 7. Bruise was present on ieft side forehead extending from supra orbital ridge to left parieto temporo occipital region. Sizeis 10 inchx7inch. 8. Bruise of 5 x 2 inch transyersly and bruise of 5x 2 inch obiiquely on middle of right thigh anteriorly with multiple small ovals to round bruise around this injury in rightthigh. 9. Lacerated wound of 2 x 1 x musde deep on left sole middle. Al! injuries were ante-mortem. Mode of death was opined to be shock and cause of death was head injury. F.I.R. was iodged vide Ex.P.22. Bioodstained and piain soils were recovered from the spot vide Ex.P.13. One lungi, a pair of chappa!, siiver bangles, Mangal Sutra and a pairof Bichhia of the deceased were seized vide Ex.P.1. Two sealed packet werealso seized vide Ex.P.4. During the course of investigation accused was taken into custody vide Ex.P.20, made disclosure statem§ntvideEx.P.S.by virtue ofwhich, at theinstance of the appellant axe was recovered vide Ex.P.10. Vide Ex.P.9 repcirt of X-ray of the deceased person was seized. Vide Ex.P.10 pillowsiwith bloodstained spots were recovered. Vide Ex.P.11 cutting nails 6f the i appeilant was sent for chemical examination. Sealed and seized art^cles were sentfor Forensic Science Laboratory, Raipur vide Ex.P.28 anclivide 1£ c-ssst•'^WT.W.Stt'iWJEXvasFSfSVFSI raauiiyae.itt.fafeliBaES.i lii-L :___^__ •pssinboe eq ABLU pssnsoe yev^ peBjn 04 'sasiujsjd sseij} UQ 'eiqeiisj tou si souspiAS SILI '9JO.(9J8Ljl pUB 'SS8U}i/A p9JO}n) e si94 pue tue||sdde 84^0 Auedtuoo SLJ) ui psseeosp sqi uses }ou OS|B seq sseu)i siy} pue SSSU)IM p|!qo s si inqey Zl. 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SSJGJ pue soueoouui siq pepesid pue uiiq IsuieBe Buueedde ssoueisiunojio sq} psiuep eq qoitjM ui epoo sqi^o g[.g uoipss Jepun psuiujexe svh\ iUB|]edde/pesnoov 'sssseutWi si.se AUBIU SB peuiuiBxs uoi}no8sojd 'tUB||sdde eq) jo }\mG sq} GAOjd o} jspjo ui 'i? 'ieifl joi js^suej} uo sseo 8L|( p©A|838JSBlj sBpnrSUOiSS89 |BUOi}lppV P8UJB8| Stjl •SUOISSSg p }jnoo ®4t0} eseo 94} peHjiuiuoo ujn} ui oq/A 'SjnQ 'SSB|O }sjij SteJisiBeirtj leioipnp p vnoo 84} sjo^sq p9|y SBM tesys eBjeqo 'uoj}e6i}SSAU! 10 uogsidiuoo jsyy '(.spoo SLJ}, yoqs jo^) sjnpsooJd leuiuiuo jo spoQ 34} jo i.91. uoipeg jepun pspjossj SJSM sesssuim eq} p s}ueiuetB}g •g 'seioi^iB jsqio pue exe 'SIIBU eq} uo psiujyuoo sem poo]q p eouesejd 6Z'd'x3 'Tkl ^ .^' I IEI?;I iL •Si»>,.,i<. ..\?3». 8. On the other hand, Shri Vinod Shrivastava, learned G.A. for She State opposed these arguments ano' argued that the prosecution has successfufiy proved complete chain of circumstances to connect the appellant in the offence. The Court below has, after appreciating the evidence adduced on behaff of the prosecution, rightly convicted and sentenced the appellant as mentioned aforesaid, therefore, the judgment impugned does not call for interference. 9. Having heard rival submissions, we have examined the evidence adduced on behalf of the prosecutioh. In the present case, homicida! death of deceased due to fatal injuries found on her body has not been substantially disputed on behalf of the appeliant but on the other hand also established by Dr. S.R.Churendra P.W.7 and autopsy report Ex.P.12. 10. As regards the complicity of the appellant in crime in question, case is based on circumstantial evidence. In this case, the only witness is Rahui P.W.12, who is a child witness and did not witness the incident but stated the circumstances. According to him, he used to call Kumari Bai as '^S ^r" and there was strained relation between the accused and the deceased. He has also stated that the deceased person Kumar Bai was not the rea! wife of the accused but she was kept by the accused person, who used to quarrel with her. He has also deposed that on the date of incident, he was present in the house and some quarrel ensued between. the accused and the deceased person. At that time, this witness was told to bring water from the bore-wel! which is situated 100 feet av/ay from his house and after ha!f an hour he returned to his house but the accused stopped him to take the water inside the house andtold this witness to go for p!aying and after about two hours he returned back to his house. At that time Kumari Bai was not present in the house but appellant was present as also his grandmother was present in the house. His grandmother was not in a position to see the things. He has alsostated that on the second day the appellant went in search of the deceased person and thereafter near about 11.00 - 12.00 noon police arrested the accused because dead body of Kumari Bai was found lying near railway cabin. Again in paragraph 6, he has deposed that v/hen he returned baek from play ground at that time he found that house was locked |^nd grandmother was found outside the house and accused was not present -^feaRSt^tf^sf-fE^ ^^^^u%Ml33»U36fac'JM^»^^r^ .i..'l-.^...-—i-l and at the time when this witness wss told to bring water, fhe deceased person was present and after returning with water he found his grandmother present outside of the house and door. was tocked. He has further stated that accused was not present. According to his statement, wheri he came back from play ground, accused was present as aiso his grandmother and when he entered the house, he was stopped to go inside the house. !n this way, it is clear that this w'rtness is not firm about his statemsnt regarding when did he go to the play ground and when did he return back. !n cross-examination, he stated that he was taken by police to adduce evidence. He has further stated that he was not aware of his mother's death. He has also statec' in paragrsph 14lhat Kumari Bai got fed up of quarreifing with the accused person and she used to ieave fhe house frequently. in this way, it is ctear that his e'/idencs is not reiiabie because he has sfated that due to quarrels Kumari Bai used to teave the house and this witness was also not certain on the date of incident whether or not Kumari Bai was present in side the house. it could be one of the reasons that Kumar.i Bai got fed up of quarrelling with the accused and as such she left the house frequently and somebody might haVe committed the murder. Thus, it has come in his evidencs that dead body of Kumari Bai was found outside the house near railway toack in open place where appellant was living and this piece of evidence is supported by P.W.1 Mubarak A!i, P.W.2 Nand Kumar Gupta, P.W.3 Yogendra Mishra, A.S.!, P.W.5 Mohammad Afza!, P.W.10 Kumari Bai, wife cf Babuial Nirmalkar and B.N.Pal P.W.15. The evidence of ali the above witness would aiso clearly reveal that the dead body of Kumari Bai was not founa' in the house where the appellant was living. This apart, P.W.12 Rahul cou!d not say anything about the deceased being seen in ths companyofthe appeliant in his house before Kumari Bai died. Even if it is presumed that when Kumari Bai was present inside the house quarrelling with the accused appellgnt and at the same time he was to!d by the appellant to bring water fromthe bore-well, which is situated 1QQ meters away from the house, and when this witness came back to th^ house with water, then certainly he wou!d have rafeed alarm that Kumari Bai was kil!ed by the accused. But he did not do so. 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In the light of above discussion, in the present case, we find that the prosecution has utteriy failed to prove the above circumstances to connect the appellant in the crime in question and thus faiied to establish the charges levelled against the appellant under Section 302 and 201 of the I.P.C. TTierefore, the conviction ofthe appellant under Section 302 and 201 ofthe i.P.C. and th©sentence awarded thereunder are set aside. The appellant is said to be in jail. He be set at liberty at once, if not required in any other case. 15. A copy of this judgment be sent to the Court below concerned immediately for the release of.appeilant forthwith, if not requireo' in any other case. The agpea! succeeds and is ailowed. Sd/- R.L.JHANWAR Judge --.^ Sd/- T.RSharma Judge