,,;E'saS5»);^ •^•'"...,..f&~'^ .f.-~ ''•:. ?•?'•- -^ ^;£^%^^ :^»<^ -^i;;^:,^''^ HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANT: RESPONDENT: Criminal Appeal No.151 of 2003 Baldev Ram, S/o Nadhira, aged about 30 years, Occupation Running Thela/ Labour, R/o Village Andon Pratappur, Address of work Rajepur, Police Station Rajpur, Distt. Sarguja, Chhattisgarh. Versys State of Chhattisgarh {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. Abhay Tiwari, counsel for the appellant. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ respondent. Division Bench: - Hon_ttle Mr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar, JJ ' ORALJUDGMENT (22-4-2010) T.P. Sharma, 3: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 28-11-2002 passed by the 1st Additional Sessions Judge, Surajpur in Sessions Trial No.113/2002, whereby & whereunder learned Additional Sessions Jydge after holding the appellant guilty for commission of culpable homicide amounting to murder of his wife Vimla @ Rajpurhin, convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life & pay fine of Rs.500/-, in default of payment of flne to further undergo R.I. for two months. 2. Conviction is impugned on the ground that without any clinching and credible evidence, the trial Court has convicted & sentenced the appellant only on conjectures & surmises and thereby committed illegality. 3. Case of the prosecution, in brief, is that on the fateful night of 11- 12-2001 at about 10 p.m. the appellant along with his wife Vimla (since deceased) & children were sleeping in his room, his small child s ^y 2 started weeping on which mother of the appellant Fulbasia (PW-1), who was sleeping beside the room of the appellant, heard the sound of beating, she along with her son went to the room of the appellant, at that time, the appellant was assaulting his wife Vimla with heavy wood 3-4 times over herhead as of result Vimla fell down and died. On second day Fulbasia (PW-1) went to the Police Station and lodged merg vide Ex.P-20 and also lodged F.I.R. vide Ex.P-1. The Investigating Offlcer left for the scene of occurrence and after summoning the witnesses vide Exs.P-8 & P-14, prepared inquest over the dead body of the deceased vide Ex.P-9. The Investigating Officer also prepared spot map vide Ex.P-13. Dead body of the deceased was sent for autopsy to Primary Health Centre, Pratappur vide Ex.P-15. Dr. R.L. Thakur (PW-12) conducted autopsy vide Ex.P- 15A and found following injuries: - (1)0ne contusion of 6 c.m. x 2 c.m. over left side of head. (2)0ne lacerated wound over left pinna of ear. (3)0ne contusion over right side of head comprising fracture of bone of head. Blood stained & plain soil, blood stained clothes and piece ofjute bag were seized from the spot vide Ex.P-6. During the course of investigation, the accused was taken into custody, he made discloser statement of heavy wood farathi vide Ex.P-4A and the same was recovered vide Ex.P-5. Sweater which the accused was wearing at the time of incident was seized from the accused vide Ex.P-7. Sealed clothes of the deceased were seized vide Ex.P-11. Patwari prepared spot map vide Ex.P-12. Seized articles were sent for chemical examination vide Ex.P-17. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before the Additional ChiefJudicial Magistrate, Surajpur, who in turn, committed the case to the Court of Sessions, Ambikapur, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as fourteen witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and has taken the plea of alibi. 3 6. After affording 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 Cou.rt, 8. Learned counsel for the appellant vehemently argued that although this is a case of murder of wife of the appellant, but only on account of murder of wife of the appellant, liability could not be fastened upon the appellant unless the prosecution proves its case beyond all reasonable doubts by adducing cogent, clinching and reliable evidence. Learned counsel further argued that in the present case all the witnesses examined by the prosecution are relatives of the appellant, they have not supported the case of the prosecution and they have deposed that wife of the appellant died at the time of incident, but the appellant was not present on the spot at the time of incident. 9. On the other hand, learned State counsel opposed the appeal and submitted that evidence of the witnesses and surrounding circumstances adduced on behalf of the prosecution are sufficient to prove the guilt of the appellant and the trial Court has rightly convicted & sentenced the appellant. l0.in order to prove the guilt of the appellant, we have examined the material adduced on behalf of the prosecutiQn. ll.In the present case, homicidal death of deceased Vimla as a result of fatal ante-mortem injuries has not been substantially disputed on behalf of the appellant, otherwise also it is established by the .evidence of Dr. R.L. Thakur (PW-12) and autopsy report Ex.P-15A which reveal that the death'of the deceased was homicidal in nature. 12.As regards complicity of the appellant in the crime in question, Fulbasia (PW-1) - mother-in-law of the deceased & mother of the appellant has deposed that on the fateful night the deceased was sleeping in her room along with children, she heard the sound of children on which she went to the room of the appellant where the deceased was lying in injured condition, but the appellant was not present there, whereupon she called Bhokha & others and finally lodged the report. The prosecution has declared her hostile. In para K 10 of her cross-examination she has stated that at the time of incident the appellant was working at Rajpur and was not present in village Amandon. She has also stated in para 11 of her evidence that the deceased was in the habit of preparing country made liquor and she used to sell the same to different persons. l3.Rajkumari (PW-2) - sister of the appellant has also admitted the homicidal death of the deceased, but in paras 7 & 8 of her cross- examination she has stated that at the time of incident her brother (the appellant herein) was not present in the village and was running thela at viliage Rajpur. l4.In the present case, the prosecution has examined fourteen witnesses, but^no witness has stated the presence of the appellant at the time of incident, inter alia, they have stated that the appellant was not present in the house at the time of incident. It appears that the witnesses, who are relatives of the appellant, have not supported the case of the prosecution and with a view to save their relative i.e. the appellant, they are concealing the truth. The prosecution has not adduced any other evidence 'to connect the a.ppellant with the crime in question. In absence of any evidence to connect the appellant with the crime in question, conviction of the appellant is not sustainable under the law. While convicting the appellant, the trial Court has not considered quality and reliability of the evidence ofthe witnesses and thereby committed illegality. l5.For the foregoing reasons, we are of the view that conviction & sentences imposed upon the appellant for cornmission of the murder of his wife are not sustainable under the law. l6.Consequently, the appeal is allowed. Conviction & sentences of the appellant under Section 302 of the I.P.C. are hereby set aside and the appellant is acquitted of the said charge. He be set at liberty forthwith, if not required in any other case..__ ___ __-_- boma Sd/- ^•P. Sharma Judge Sd/- R.L. Jhanwar Judge