IB i;;^" ^S^SSSS^KW^^fSSS'' HIGH COURT OF CHHATTISGARH AT BILASPUR -^--.. -. -. __ DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA & HON'BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No. 379/2003 —-^jr APPELLANT (In Jail) RESPONDENT Versus Ma^glakar S/o Bholaram Sarthi, Agrid about 45 years, R/o Adil, P.S. Malkharoda, District Janjgir Chanpa (C.G.). State of Chhattisgasrh Through P.S. Malkharoda, District Janjgir Chanpa(C.G.). '%>. APPEAL UNDER SECTION 374 (2) OF THE CR.P.C. Present:- Shri K.K. Singh, Advocate for the appellant. Shri Ashish Shukla, G.A. for the State/respondent. ORAL-JUDGEMENT (Passedon 04/12/2010) The following iudgment of the Court was passed bv T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 28/1/2003 passed by Additional Sessions Judge, Sakti, District Bilaspur in Sessions Trial No. 239/2002 whereby and where under after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of his wife Bedinbai, convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life with Gne of Rs. 1,000/- in default of payment of fine amount additional rigorous imprisonment for 3 months. 2. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of appellant "^? .:1"2'-S'^^ Court below has qonvicted a-nd sentenced the appellant as aforementioned on the basis of hostile witness who has not supported the case of the prosecution and thereby committed an illegality. As per case of the" prosecution, between intervening night of 28/4/2002 and day of 29/4/2002 i.e. 11:00 P.M. of 28/4/2002 to 10:00 A.M. of 29/4/2002, appellant husband of;Bedinbai was present in his house at Village Adil along with Bedinbai (since deceased). On 28/4/2002 he met with PW16 Manoj Kumar Sahu near Hand Pump and told him that his wife Bedinbai (since deceased) is reacting abnormally and what happened to her then PW16 Manoj Kumar Sahu informed the incident and circumstances to the Sarpanch and other persons, appellant fled away from his house on 28/4/2002. On 29/4/2002 Sarpanchand other witnesses went to the house of appellant where dead body of Bedinbai was lying. PW1 Ganesh Ram Sahu went to the Police Station and lodged Marg intimation vide Ex. P-1. Investigating Officer left for scene of occurrence after sunimoning the witnesses vide Ex. P-6, inquest over the dead body of deceased Bedinbai was prepared vide Ex. P-7. Dead body was sent for autopsy to Government Hospital Malkharoda. PW10 Dr. Ram. Prasad Kurre conducted autopsy vide Ex. P-12 and found the dead body was decomposed, thyroid and hyoid bone of neck was found fractured. Mode of death was asphyxia as a result of throttling. Death was homicidal in nature. Spot map was prepared vide Ex. P-13. First Information Report was lodged vide Ex. P-14. .- Statements of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (in '^ ~\\ 'K'' ^^:£^:I'i^l°$'§l g short 'the Code). Accused/appellant was arrested on 7/5/2002 vide Ex. P-5. After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Sakti who in turn committed the case to the Courfof Sessions, Bilaspur from where learned Additional Sessions Judge, Sakti, District Bilaspur has received the case on transfer for trial. In order to prove tho< guilt of the appellant/accused prosecution exainined as- many as 16 witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication is claimed. He has taken further defence that on the date of incident, he was not present in his house, he had gone to the Collectorate for filing application thereafter he went to the in-laws house along with his kids where he was arrested thereafter he has taken the defence of alibi. After affording an opportunity of hearing to the parties learned Additional Sessions Judge, Sakti, District Bilaspur convicted and sentenced the appellant as aforementioned. Mr. K.K. Singh, learned counsel for the appellant and Mr. Ashish Shukla, Govt. Advocate for the State/respondent are heard. Judgment impugned and record of the Court below perused. Learned counsel for the appellant vehemently argued that conviction is based on circumstantial evidence specially on the basis of evidence of PW16 Manoj Kumar Sahu hostile witness who has not supported the case of the_ prosecution. Conviction of the appellant is not based on legal, clinching and credible,.evidence. ^Vf y&«Si 9. On the other hand, learned Government Advocate for the respondent/State opposed the appeal and submits that conviction is based on credible and clinching evidence. Prosecution has collected sufficient evidence for conviction of th& appellant. 10. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecii'tion. 11. In the present case, homicidal death as a result of fatal injury found over the neck of the deceased has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW10 Ram Prasad Kurre and autopsy report Ex. P-12 which reveal that fatal injury was found over the neck of the deceased and death was homicidal in nature. 12. As regard the complicity of the appellant in crime in question, in the present case all material witnesses have been declared hostile by the prosecution. They have not substantially supported the case of the prosecution. As per circumstantial evidence appellant was residing with deceased. On the date of incident he was present in his house and he told about the health and behavior of the deceased to PW16 Manoj Kumar Sahu. After telling the fact relating to health of the deceased to Manoj Kumar Sahu, appellant fled from the Village and thereafter he was arrested after 7 days of the incident. PW16 Manoj Kumar Sahu deposed in Para-2 of his evidence that while he was washing his hands at about 5.00-6.00 P.M. in Hand Pump appellant came and told him that what happened to his sister-in- law i.e. deceased then appellant had gqne t6 Hand Punip. He informed the incident to Sarpanch, ii"i'!n[1 i.J!il ?1'"ilT^!^-yul:L :—£-drl %>. ^ ,^5e^ © •s:!S!aa!a. prosecution has declared him hostile. In Para-6 of his cross examination he has admitted that appellant told the aforesaid facts to him on Sunday. PW1 Ganesh Ram Sahu has lodged the report. As per his evidence he was informed by other persons then he lodged Marg intimation Ex. P-1. Prosecution has also declared him hostile. 13. Another witness PWg^' Ganga Ram Chauhan has deposed in his evidence that Ganesh Ram Sahu told him that appellant has killed his wife on 25/5/02 between 7.00'to 8.00 P.M. then they visited the house of appellant on 29/5/02 i.e. on Monday where they found the dead body of Bedinbai. These are the only evidence against the appellant. As per evidence of PW16 Manoj Kumar Sahu he narrated the incident to Sarpan.ch, Kakhiya, Bereth & Maharaj Mangaldas but prosecution has not examined the aforesaid 4 witnesses in support of the case of the prosecution. PW1 Ganesh Ram Sahu, PW2 Ganga Ram Chauhan, PW3 Dhirjabai, PW4 Sanni Kumar Sarthi and other witnesses of the village they came to know that on 28/4/02 appellant has killed his wife but they have not lodged the report to Police. On 28/4/02 they have not made any search for appellant and they were not visited the house of appellant where dead body of deceased was lying. In these circumstances few words deposed against the appellant by PW16 Manoj Kumar Sahu & PW2 Ganga Ram is definitely sufficient for causing suspicion that appellant may have committed the offence but has not sufficient for definite conclusion that appellant has comn'iitted murder of his wife. In absence of any evidence at the time of incident appellant was present in his house along with his wife and no other persons y !iii!"il; i' IJiHi .^sy^KB a»» i'b^^i'laSgSte^ 14. were preseht, he was under obligation to offer the explanation in ferms of Section 106 of the Indian Evidence Act, there is much difference may prove and must prove suspicion however grave cannot take place of legal evidence. Consequently, the evidence of aforesaid two witnesses are not sufficient for drawing definite conclusion against the appellant. While convicting the appel}&nt under Section 302 of the Indian Penal Code Court' below has not considered the aforesaid facts and' insufficiency of the evidence and thereby corrimitted illegality. Consequently, criminal appeal is allowed. Conviction and sentence of the appellant under Section 302 of the Indian Penal Code is hereby set-aside. He be set at liberty. He be released forthwith if not required in any other case. '--—~ Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge