HIGH COURT OF CHHATTISGARH, BILASPUR ^^A J4/} CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 347 ofl 993 Sewak Ram Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEVGUPTA s Sd/- Ouef Jiistice ^^/07/20TO Post for Judf ^^am2QQlCL___ Sd/- •^udge ^./707/2010 RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.06 12:32:46 +0530 /"'// HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'bleShri Raieev GjJ@ta, C.J. & Hon'ble Shri Sunil Kumar Sinha. J. APPELLANT RESPONDENT Criminal ApDeal No. 347 of 1993 Sewak Ram S/o Seeraj Lal Yadav, Aged 23 years, R/o Doundi, District Durh (M.P.) (Now Chhattisgarh) Versus State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure. 1973) Appearance: Mr. B.N. Pandey, Advocate forthe appellant. Mr. Akhil Agrawal, Panel Lawyer for the State. JUDGMENT (ZZ.07.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant- Sewak Ram stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life by the Second Additional Sessions Judge, Durg in Sessions Trial No. 478/91 on 16 of February, 1993. (2) The facts, briefly stated, are as under:- Sukhmati Bai (PW-1) was married to the appellant 4 years prior to the date of incident. The appellant was suspecting her character. Hewas suspecting thatAnita, a female child aged about 1 1/z years, delivered by Sukhmati Bai, was not h»s daughter. This was the reason for quarrel between them. Theallegations are that on this account, on 20.8.91 at about 9.30 p.m., the appellant threw his daughter Anita into the well. His wife Sukhmati Bai (PW-1) also .-'".^•^ '••& ^' "^ ^'y.'•i @ ^^.Sy^ :s t i Criminal Apueal No. 347 of 1993 jumped into the well for saving the life of her daughter. Thereafter the appellant also jumped into the well. The appellantand his wife Sukhmati Bai (PW-1) were saved. However, the daughter has died. The prosecution examined only 3 witnesses in this matter. They are Sukhmati Bai (PW-1), Dr. H.K. Joshi (PW-2) and T.R. Kanwar (sub-inspector - PW-3). The Sessions Court relied on the testimony of Sukhmati Bai (PW-1) and convicted the appellant as aforementioned. (3) Mr. B.N. Pandey, learned counsel appearing on behalf of the appellant, argued that the testimony of Sukhmati Bai (PW-1) was not at all reliable, therefore, the conviction based on her sole testimony cannot be sustained. (4) On the other hand, Mr. Akhil Agrawal, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (5) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (6) Sukhmati Bai (PW-1) deposed that on the fateful day, the appellant took her daughter and ran away towards the badi. She also followed the appellant. She saw that the appellant jumped into the well along with her daughter. She also jumped into the well for saving their lives. When she made cries from the well, her mother-in-law, Savita. Bai, came there. On her rescue, she was saved. The appellant was also saved, but her daughter could not be saved. She lodged the First Information Report (Ex.-P/1). We note that in the F.I.R. (Ex.-P/1), she gave a different story. •^ Criminal Appeal No. 347 of 1993 She stated that the appellant threw her daughter into the well. She was crying 'save - save'. She also jumped into the well. She tried to save her daughter but she could not be saved. She had not mentioned that the appellant had also jumped into the well. (7) It is an admitted position that the relations between the appellant and Sukhmati Bai (PW-1) were not cordial. If the appellant had also jumped into the well along with his daughter and it was not a case that he threwthe daughter into the well, the version of the F.1.R. should have been in the above manner. She has entirely changed her version in her court evidence. On this account, her evidence does not appear to be fully reliable. (8) It comes in the evidence of Sukhmati Bai (PW-1 ) that Savita Bai also reached to the well immediately and she had helped them to come out from the well. Savita Bai was a cited witness of the prosecution. She was present in the Court on 21.10.92. She was not examined and was given-up along with 3 other witnesses namely Bhagwati, Seeraj Lal and Shiv Prasad, who were also present on the said date. No reason has been assigned as to why these witnesses were given-up by the prosecution. In the facts and circumstances ofthe case, in our considered view, Savita Bai was an important witness who could have given the correct story as to what exactly happened on the said date. Her non- examination was fatal to the prosecution as the only available evidence of the prosecution i.e. evidence of Sukhmati Bai (PW-1) suffers from infirmity and in our view, it was unacceptable in the absence of other evidence. Therefore, in the facts and circumstances of the case, on .y-fc t--1 Criminal Apueal No. 347 of 1993 account of non-examination of Savita Bai who was a material witness, an adverse inference should have been drawn. (9) Apart from the above evidence of Sukhmati Bai (PW-1), the evidence of other two witnesses were formal. Dr. H.K. Joshi (PW-2) conducted the post-mortem examination. He has given his opinion regarding the death of the deceased. Mr. T.R. Kanwar (PW-3) was sub- inspector and was posted in the concerned police station. He has written the merg intimation (Ex.-P/S) and has also prepared Panchnama (Ex.- P/4) of the dead body and has sent the dead body for post-mortem examination through memo Ex.-P/2. We note that the further investigation was not conducted by this witness. In the above facts and circumstances of the case, we find that the only evidence of Sukhmati Bai (PW-1) led by the prosecution was not fully reliable and in absence of any other evidence on record, it was not possible to hold that the prosecution had proved beyond all reasonable doubt that it was the appellant who in fact committed the murder of the deceased by throwing her into the well. (10) For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant are set-aside. He is acquitted of the charges framed against him. It is stated that the appellant in on bail. His bail bonds are cancelled and surety stands discharged. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti