1^=^ HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Aooeal No. 25 of 2004 CORAMs HON'BLE MR.T.P.SHARMA-fe. HONBLE MR. N.K. Ag^rw^, JJ. APPELLANT (InJail) RESPONDENT Udan Khairwar, S/o Kanchaa Khahwar, aged about 31 years, R/o Vill. Jarhadih, Thana Balrampur, Distt. Sarguja (CG) Versus State of Chhattisgarh through Police Station Balrampur, Distt. Sarguja (CRMmAL APPEAL UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present- Shri Arun Shukla, counsel for the appellant. Shd Rakesh Jha, Dy. Govt. Advocate, for the State/respondent. JUDG2SBBNT (Passed on llthJanuaiy, 2010) The judgment ofthe Court was delivered by T.P.Sharma, J.:~ 1. ChaUenge in fhis appeal is to the judgment of convietion & order ofsentence dated 19-11-2003 passed by the Additional Sessions Judge (FTC), Ramanujgaiij in Sessions Trial No. 255/2002 whereby and whereunder leamed Additional Sessions Judge affcer holding the appellant guilly for commission of offence punishable under Section 302 of Indian Penal Code, sentenced him to undergo imprisonment for Ufe and fine of Rs. 1,000/-, in default of payment of f5ne, to undergo additional R.I. for 2 naonths. 2. Judgment is impugned on the ground fhat wifhout any iota of evidence, leamed Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegallty. 3. Case offhe prosecution is that on fateful day of 12-4-2002 at about 1 pm, 7 years aged Ku. Takli, daughter of the te?": (^. appellaat was present ia her house and she was found dead. Appellant Udan Khairwar told Ramjiram that Takli fell down and died. Ramjiram lodged M.erg iatimation vide Ex. P-1. F.I.R. was lodged vide Ex. P-11. Thereafter, police left for the place of occurrence and after sLimmoning the witnesses vide Ex. P-2, inquest over the dead body of fhe deceased was prepared vide Ex. P-3. Blood stained and plain soil and one blood stained kitchen spoon were recovered from fhe spot vide Ex. P-7. Dead body was sent for autopsy to Pnmary Healfh Centre, Balrampur. Autopsy was conducted by P.W. 6 Dr. P.L. Venna vide Ex. P-9, who found foUowlng injuries:- i. One contusion over nght eye of 2 xVsCEa; u. One contusion over leff side of chin of 1 x 1 cm; iii. One abrasion of 1 x 4 cm; iv. One contusion over chin; v. One contusion along wifh abrasion over left side of neck of 3 x 2 cm; vi. One abrasion over right side of the neck of % x Vs cm; vii. Two abrasions over neck of 1 x *4 cm and 1x2 cm; viii. Two contusions over left side of back of 3 x 1 cm and 1x4 cm. Cause of death was suffocation as a resiilt of pressing of mouth, nose and neck and fhe deafh was homicidal in nature. 4. Statements of the witnesses were recorded under Section 161 of the Code of Crimlnal Procedure, 1973 (hereinafter referred to as the Code'). After completion of investigation, charge sheet was filed in fhe Court of Chief Judicial Magistrate, Ramanujganj who in tum committed the case to the Coiirt of fhe Sessions Judge, Ambikapur from where leamed Additional Sessions judge received the case on transfer for trial. 5. In order to prove the guilt of the appeUant, prosecution exaDiined as many as 15 witnesses. Statement of the accused was also recorded under Sectfon 313 of fhe Code where he denied the circumstences appeadng agalnst him and claimed innocence and false implication. 6. After affording an opportunily of hearing to fhe parties, leamed Additional Sessions Judge convicted and senteneed fhe appellant as aforementioned. 7. We have heard Shri Arun Shukla, leamed counsel for the appellant and Shri Rakesh Jha, leamed Dy. Govt. Advocate appearing for fhe State/respondent and perused the judgnient unpugned and the record offhe Coiirt below. 8. Leamed counsel for the appellant vehemently ai^ued fhat this is a case of murder of daughter by fhe appellant but fhe prosecution has utterly failed to adduce evidence to show that flie appellant has assaulted his daughter or pressed the neck, nose and mouth of his daughter and the conviction and sentence ofttie appeUant is not sustainable under law. 9. On the other hand, Shri Rakesh Jha, leanied Dy. Oovt. Advocate appearing for the State veheiacsntiy opposed the appeal and submitted (hat the evidence adduced on behalfof fhe prosecution was suHicient for drawing mference fhat the accused is the person who has caused fatal injury to the deceased and caused homicidal deafh ofthe deceased. 10. In order to appreciate the argument advanced by the parties, we have examined the evidence adduced on behatfof the prosecution. In the present case, homicidal deatfa of the deceased is not disputed by fhe appellant, othenvise, it is established by the evidence of P.W. 6 Dr. P.L. Venna aad autopsy report Ex. P-9 which reveal that cause of deafh is suffocation due to pressing ofnose, mouth and neck. 11. As regards complicity of the accused in the crime hi question, the prosecution has examined substantive witnesses P.W. 1 Ramjimm, P.W. 2 Smt. Devkalia, P.W. 3 Riyazudding, P.W. 4 Devpati Bai, mother of the appellant, ^l— P.W 5 Kanchan Singh, father of the appeUant, P.W. 10 Ku. Jivanti, P.W. 13 Vidya Sag^r, P.W. 14 Dhaaushdhari. AU these witnesses have deposed that fhey came to know that Taldi has died, they went to fhe house ofTakli vphere her body was lying in injured condition. AU fhese witnesses have also deposed that fhey came to know that appeUant Udan Khmrwar has caused fatal injury to fhe deceased, but ^hey have not deposed tn their evidence as to who has seen the incident and before whom fhe appeUant has caused fatal injury to the deceased. It appears fhat all these witnesses are hearse witnesses and have not seen tihe incident. They are relyiag on fhe evidenc^ of each ofher. In absence of substantial evidence to fhe effect fhat fhe appellant is a person who has caused fatal injury to fhe deceased, it is difficult to hold fhat the appeUant has caused fatal injiary. While convictmg fhe appellant under Seetion 302 of I.P.G., learaed Additional Sessions judge has not considered most material aspect of fhe case fhat nobody has seen the incident. The case is not based on circumstantial evidence or evidence of last seen theory. Merg has been lodged same day by Ramjiram in which, it is mentioned that TakU dled as a result offalling down and died as a result of such mjury. On a close scrutiny of fhe evidence adduced on behalf of the prosecution, we are of fhe view that the prosecution has failed to adduce fhe evidence to connect the appellant with crime in question. Consequently, conviction and sentence of the appellant is not sustainable under law. 12. For the foregoing reasons, fhe appeal deserves to be allowed and is hereby allowed. Conviction of fhe appellant under Section 302 of I.P.C. and the sentence imposed on him is hereby set aside. He be set at Uberty forthwifh, if not required in aay ofher case. Sd/- T.P.Sharma Judge Sd/- N.K.Agarwal Judge