..,;;.«—:-•„„, '^ ^ •aaa. li ^/"-->, t1: fi & v<i-»ssa,| j v^ s s HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANT: (In Jail) RESPONDENT: Criminal Appeal No.211 of 2006 Loknath S/o Khulashram Rathiya aged about 35 years R/o village Sakerliya, P.S. Dharamjaigarh Distt. Raigarh (C.G.) Versus The State of Chhattisgarh Through P.S. Dharamjaigarh Distt. Raigarh (C.G.) {Criminal appeal under Section 374 (2) of CrPC1973} Present: Miss Shipra Biswas, counsel for the appellant. Mrs. Madhunisha Singh, Panel Lawyerforthe State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar, JJ ORALJUDGMENT (16-3-2011) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 30-10-2003 passed by the 3 Additional Sessions Judge (FTC), Raigarh in Sessions Trial No.80/2003, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Mesram Rathiya, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, on the fateful night of 24-3-2003 at about 8 p.m. Sukhmoti (PW-2) - wife of the deceased, was present in her house, Ram Prasad (PW-1) - relative & neighbour ofthe deceased, was also present in his house, at that time, some person who was hiding his face by lungi caused two injuries over head & shoulder of Mesram (since deceased) resulting in his death, thereafter, he fled away from the spot. Sukhmoti (PW-2) shouted that somebody has killed her husband, then Ram Prasad (PW-1) came and other persons also gathered on the place 2 f %/ of incident. Ram Prasad (PW-1) went to the police station, which is 34 kms. away from the place of incident, on second day morning at 9.50 a.m. and lodged FIR vide Ex.P-2 and merg vide Ex.P-1. The Investigating Officer left for the scene of occurrence and prepared spot maps vide Exs.P-3 & P-4. After summoning the witnesses vide Ex.P-8, inquest over the dead body of the deceased was prepared vide Ex.P-9. Dead body was sent for autopsy to Government Hospital, Dharamjaigarh vide Ex.P-11. Dr. A.S. Thakur (PW-7) conducted autopsy vide Ex.P-11A and found following injuries: - (1) Incised wound of 8 c.m. x 3 c.m. x bone deep on left shoulder. (2) Incised wound of 10 c.m. x 3 c.m. x bone deep over back of head, brain matter was coming out from the injury. Mode of death of the deceased was coma as a result of head injury and death was homicidal in nature. Bloodstained and plain soil were recovered from the spot vide Ex.P-12. Sealed clothes of the deceased were seized vide Ex.P-14. During the course of investigation, the accused was taken into custody, he made discloser statement of axe vide Ex. P-5 and same was recovered at the instance of the accused vide Ex.P-6. Bloodstained lungi and gamcha were seized from the appellant vide Ex. P-7. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Dharamjaigarh who committed the case to the Court of Sessions, Raigarh, from where learned Additional Sessions Judge received the case on transferfor trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as ten witnesses. The accused was examined under Section 313 ofthe CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. 6. After providing opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 'AT'] 3V 8. Learned counsel for the appellant vehemently argued that conviction of the appellant is substantially based on evidence of Ram Prasad (PW-1), Sukhmoti (PW-2) & Girdhari Ram (PW-8) whose evidence does not inspire confidence and is not trustworthy. As per evidence of aforesaid witnesses, initially they have not mentioned the name of the appellant as assailant to the police. Ram Prasad (PW-1) has not seen the incident, he was informed by Sukhmoti (PW-2) that some unknown person has caused death of her husband, thereafter on the basis of information received from Sukhmoti (PW-2), he has lodged merg and FIR vide Exs. P-1 & P-2, respectively, which also reveal that some unknown person has committed murder of deceased Mesram, but after lapse of so many months, first time they have deposed in the Court that the appellant has caused fatal injury to Mesram resulting in his death. In these circumstances, contradictory evidence of the aforesaid witnesses is not sufficient for drawing inference that the appellant has caused homicidal death ofdeceased Mesram. 9. On the other hand, learned State counsel opposed the appeal and submitted that evidence of Ram Prasad (PW-1), Sukhmoti (PW-2) & Girdhari Ram (PW-8) is sufficient for drawing inference that the appellant has caused homicidal death of deceased Mesram with intent to cause his death. 10.1n order to appreciate the arguments advanced on behalf ofthe parties, we have examined the evidence adduced on behalf of the prosecution. 11.1n the present case, homicidal death of deceased Mesram as a result of fatal injuries found over his body has not been substantially disputed on behalf of the appellant, even otherwise, it is established by evidence of Dr. A.S. Thakur (PW-7) and autopsy report Ex.P-11A that death of deceased Mesram was homicidal in nature. 12.As regards complicity of the appellant in the crime in question, conviction is substantially based on evidence of Sukhmoti (PW-2) corroborated by evidence of Ram Prasad (PW-1) & Girdhari Ram (PW-8). As per evidence of Sukhmoti (PW-2), on the fateful night her husband deceased Mesram was present in the house at about 8 p.m., at the same time the appellant came and assaulted her husband by axe and at that time the appellant was hiding his body by lungi, then he fled from the spot. Ram Prasad (PW-1) & Girdhari Ram (PW-8) have substantially corroborated the evidence of Sukhmoti (PW-2). In paras 7, 8 & 9of her cross- examination, Sukhmoti (PW-2) has specifically admitted that initially she has stated to the police that the person who has caused injury to her husband was hiding his body by lungi and she was not in a position to identify him. She has further admitted that she called her son-in-law Girdhari stating that somebody has killed her husband. She has also admitted in para 9 of her cross-examination that she was informed by the police that the appellant has caused injuries to her husband. 13.0irdhari Ram (PW-8) has admitted in paras 7, 8 &9 of his cross- examination that he was examined by the police twice, he has specifically admitted in para 7 of his cross-examination that after hearing the sound of his mother-in-law he came out from the room and at that time, he saw that the persbn who was running was hiding his face by lungi. In para 8, he has admitted the suggestion that he has not told the name ofthe assailantto the police. 14.Ram Prasad (PW-1) has admitted in his evidence that he has lodged FIR vide Ex.P-2 and merg vide Ex.P-1. He has specifically admitted in his evidence that he was informed about the incident by Sukhmoti (PW-2). In para 11 of his evidence, he has further admitted that at the time of lodging report, he has informed the police that some unknown person has caused injuries to Mesram (since deceased). 15. Ex.P-1 merg & Ex.P-2 FIR also reveal that some unknown person has caused homicidal death of Mesram. Ram Prasad (PW-1) has lodged FIR after twelve hours of the incident in which he has not named the appellant. 16.Evidence of the aforesaid witnesses clearly reveal that the person who has caused injuries to deceased Mesram was hiding his body by lungi and they have stated to the police that they have not identified the person who has caused injury to deceased Mesram. Substantive witness Sukhmoti (PW-2) has clearly admitted in para 9 of her cross- examination that she was informed by the police that the appellant has caused injuries to her husband. 17.Evidence of Sukhmoti (PW-2) does not inspire confidence, it is not trustworthy and is not sufficient for drawing definition condusion that the appellant has caused homicidal death of deceased Mesram or that this witness has seen the appellant at the time of incident. Evidence of Ram Prasad (PW-1) & Girdhari Ram (PW-8) also does not inspire confidence and is not trustworthy. Virtually, evidence of these witnesses clearly reveal that before giving information by the police to Sukhmoti (PW-2), they were not knowing the fact as to who has caused homicidal death of Meshram, only when it was informed to Sukhmoti (PW-2) by the police, they came to know that the appellant has caused homicidal death of the deceased. In these circumstances, they are hear say witnesses and their evidence is not admissible for convicting the appellant. While convicting the appellant under Section 302 of the IPC, the trial Court has not considered their evidentiary value and has committed grave illegality. 18.1n our considered view, conviction & sentence imposed upon the appellant under Section 302 of the IPC on the basis of hear say evidence, are not sustainable under the law. 19.Consequently, the appeal deserves to be allowed and it is hereby allowed. Conviction & sentence of the appellant namely Loknath under Section 302 of the IPC are hereby set aside and he is acquitted of the said charge. He be released forthwith, if not required in any other case. yoma Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge \^7 ii/