HIGH COURT OF CHHATTI8GARH, BILA8PUR Qrimiaal Aooeal No. 201/2006 APPBLLANT (In Jail) Budheshwar Prasad s/o Slui Bhojram Banjare aged 36 fThirty six) years, rcsident of vi0ag,e Doiniihani ia Police Station Bilaigarh holding post of Superintendent in Govt. Kanya Ashiaia at Odkakan. in ttie PoUcc Station Sarsiwa, District Raipur (CG) VBRSUS RESPONDBBT State of Chbattisgarh, CRIMINAL APPBAL UNDBR SECTION 374 OF THB C»DBOB' CRIMINAL PROCEDURE Appearance: Shri J.R. Verma and Shri Santosh Sahu, counsel for the appeUaat. Shri D.K. Gwalre, Govenunent Advocate for the Statc. Division Bench:- Hoalile Shrl T.P. Sharma & Hoa'ble Shr! R.L.Jhsmwar.JJ Per T.P.Sharma, J. ORAL JUDOMEnT (22.01.2010) 1. Chatlenge iu this appcal is to the judgtaent of convtetion and order of sentence dated 28.2.2006, passed by the First Additional Sessions Judge, Baloda Bazar, District Raipur (CG) in Sessions Trial No. 140/2004, whereby aad whereunder thc leamed Additional Sessions Judge after holding the appeUant guilty fia- commission of causiag homicidal death, amouatmg to laurder of Ku. Sanjay, convicted the appeBant under Section 302 of the IPC and sentenced to undergo imprisoniuent for life and to pay a fine of Rs.500/-, in defazilt ofpayineut offine to fdrther undergo R.I. for 3 xaonths. 2. The judgment is chaUenged on the ground fhat without any sufficient and cliachiag evidence, the Court below has convicted and sentenced the appeBaat as aforeiaentioned aud fhereby cominitted iUegalily. 3. The brieffacts are fhat Ku. Saajay •was residiug ia fhe Girls Hostel at Odkakaa, District Raipur aud the appeUant was Teacher and Warden of fhe Hostel. On fhe fateful day of 19.3.2004, in between about 2.30 p.m. to 3.00 p.m., dead body of Ku. Sanjay was foiuad inside the kitehen occupied by fhe appellant. She died as a result of bum uyuries. SmeU of kerosene oil was coBaiug out fi»m the dead body. The accused/appeUant intimated to Police aud merg iatiination was recorded vide Ex. P/14. Written report was lodged by the father of the deceased- Ramadhar vide Ex. P/9, First Information Report was lodged vide Ex. P/10. Dead body of fh.e deceased was sent for autopsy to fhe Comxnumty Health Centre, Bilaigarh vide Ex. P/ 15. Autopsy was conducted by Dr. Pradeep Siagh vide Ex. P/18. The Doctor found 100% bum iujuries at the person of fhe deceased aad a strong sineU of kerosene oU over fhe body, but a&y other iajury was not fbzind. Stove containing 1/2 Utre ofkerosene oil aad bumt clothes were seized vide Ex. P/1. Bumt pieces of ofher clofhes containiag smeU of kerosene oil were seized vide Ex. P/4 fix>in the spot. Burat pieces of clofhes rem.oved froia fhe body of fhe deceased ater autopsy were seized vide Ex. P/5. School Register was seized vide Ex. P/8. Statements ofwitaesses were recorded imder Section 161 ofthe Code ofCrimmal Procedure, 1973. 4. After conipletion. of fhc investigation, chai^e sheet was filed before the Court ofjudicial Magisteate First Cl^s, Baloda Bazar, who in tura, committed fhe case to fhe Court of Sessions, fioiu where the leamed First Additk>nal Sessions Judge, Baloda Bazar received fhe case on traasfer for trial. 5. Chai^e sheet was ffled under Section 306 of the IPC, but after hearing the parties, the learaed Additional Sessions Judge fi-amed chaige under Scction 302 of fhe IPC agaiust the appeflaat vide order dated 22.6.2004. 6. In order to prove the guilt of fhe accused/appcUant, prosecution has exainined as inauy as 14 wituesses. The accused was examined under Section 313 of the Code of Griminal Procedure, in which, he admitted fhe circuaistaaces but denicd the inaterial appearmg ^ainst him, pleaded mnocence and fclse implicatiou. 7. After afFording fhe opportunily of hearmg to the pardes, the leamed Additional Sessions Jtidge has convicted aad seatenced the appeUaat as above. 8. We have heard leamed coimsel for fhe parties at tei^th and have perused the judginent and record ofthe Court below. 9. Leamed coitasel for fhe appeUant veheaaentty argued that the case is based on circumslantial evideuce, but the evidcnce adduced on behalf of the prosecution is not siiEBcient for diawing presuiaption thflt the appeUant has coinniitted the crune and the fact that except the appeUant-nobody has committed the ciiiae. He furftier argued that fhe appeUant was Wardeu of the Hostel aad he was present ia fhe Hostel. Deceased- Ku. Sanjay has dicd iaside the kitchen, at that time, gas bumer was also bunung. The appeUaat mmiediately iutuaated to PoUce aad also intixnated to the /yy^ \ t 1 ^ -—-.iig ^ %. '^,..-,'"'^ fafher of the deceased, who came at the tixne of i&quest. The matter was iavest^ated by the Police and a caae of suicidal death was fouad, but suddeitly the leamed Additional Sessions Judge fi-amed chai^e of coimnission of inurder without any ewidence. He furthcr aigued that fhere is no iacrinunating evidencc on record, which coidd coiinect the appeUant with fhe crime in question and fhe prosecution cannot take benefit ofweakness. 10. On the ofher hand, teamed counsel for fhe State opposed these arguinents aad stated fhat fhe conviction ofttte appeUaat is based on fhe foUowing circuinstances: i. Firstly the deceased, who was ia fhe custody of the appeUaat, was died iaside the kitehen of the appeUant as a result ofburu injuries. ii. Gas bumer was found in buralng conditk»nand stroag siaeB of kerosene oil was comiag out finm fhe body of the deceased, which shows that the deceased was burat wifh keroseae oil and not due to accident. No satisfactoiy explaaation has been offered by the appeUaut for such uiuiatural and abnormal death of the deceased. 11. In order to appreciate the argunients advanced on bchatf of fhe parties, we have exaniiaed the evidence adduced on behalfof the prosecution.. 12. In the present case, deafh of dece^ed- Ku. Saajay as a result of excessive bum injiiries, has aot been substantiaUy disputed by the appeUaat. On the other hand, the appellaat has admitted fhe postmortem report Ex. P/18 aad has also lodged mei^ iutunatioa vide Ex. P/14. It is sufficient for diawiag aa inference that fhe deceased had dicd as a result of bum mjuiies and the iajitries were anti-mortem. >, L / ' 'f l' / 13. As regards conipUcity offtie appeUant in crune ia questioa is concemed, prosecution has examiucd fhe evidence of Kttyeram (PW-2), Bhuwausingh (PW-3), Ramadhar (PW-7) fafher af the deceased, Smt. Mayamati (PW-8) mother of the deccased, Ku. Sorag Kumari (PW-9), Ku. Siya Manhar (PW-10) aad Molilal (PW-11). They have deposed that fhe deceased was found iuside the rooia used for kttchen by ffae appeUaut. Ku. Saroj Kuiaan (PW-9) has deposed fhat just before deafh of thc deceased they were plucking Semhar fruits along with some other giris aad at about 2.00 to 2.30 p.iu. Sanjay told thein fhat she is going to driirii: water aad went away fix>ia the placc. However, thereafter shc did not come back and her dead body was found inside the rooin. In para 6 of her evidence, she has categoricaUy deposed that firsfly, deceased Saujay went from. the place, where they were pluckmg Semhar fi-uits aad thereafter, she along with the girls went to Hand purnp for washing haads. Tbe appeUaut was also prescnt fhere. He washed haads and went to his quarter aad uiuaediately coiac back and informed that fhe deceased-Sanjay Iias burat. Then fhey went on the spot and found fhc deceased- Sanjay iu bumt condltion. In para. 7 she has admitted that Gas bumer was buming at that time. Other wituesses have not deposed anythmg ^ainst tfae accused/ appeUant. The above circumstaaces, adduced on behalf of fhe prosecution revealed fhat deceased --Saaj^r wcnt inside kitchen aad subsequently, shc was foimd bumt. Her dead body was lying inside fhe kitchea. Accused was present near Hand pzunp aknig wifh fhe gu-ls. He went to his house/quarter aad immediatety come back and iuformed fhat the deceased haa bumt. Alfhough, when ftiere was already fhe Gas buraer wifh the appeUant thea there was no question of using of kerosene oil, which is used for stove. If evea fhe evidence adduced on behalf of fhe prosecution is admitted, it cannot be presumed fbat before her deafh, she was x ^^^^ ^s ^' ^. pluckmg Semhar fizuts along with sonie ofher girls, The deceased herself went after teUing the girls that she is goiag to drink watcr aad thereafter, she dld not come back. The girls went to thc HatMl pump for washing hauds, where the accused/ appellaat was also present. He washed hands on the Hand pump aad went to his quarter, but immediately he come back aad iaformed fhe giris fhat Sanjay has bumt. The Haad pump aad Uving place of fhe appeBant is not far fi-oin the Hostel, therefore, the presence of fhe appellaat on the spot is not ttanatural. Prosecution has not adduced any cvidence that the deceased was caUed by the appeUaat for aay work or for any other piirpose. She herself had gone after infonning the other girls that she is goiag for druiking water and thereafter, she did not come back. The appeUant was not inside fhe house and he was present on the Haud punip along wifh the girls. When the appellant went iaside the house, he imm.ediately com.e out aad informed that fhe deceased- Sanjay has bumt. Eveu the prosecution has not adduced aay evidence referring to the motive of the appeUant for commission of homicidal death of the deceased. The deceased was a student aad she was Uving ia the Hostel. Father ofthe deceased, Ramadhar (PW-7) has deposed in para 12 ofhis evidence that the deceased had never coiaplained against the appellant. 14. Even if the evidence adduced on. behalf of the prosecution is admitted on its face value, fhen only it can be inferred that ffae deceased was pluckiag Semhar fruits along wifh. other giris and after iaforuung fhein, she went for dnnldng water and fhereaftcr. she did not come back aad she was found dead as a result ofbzim iajuries ia side the kitehen. The appellaut was also present near the Haad ptuup aloug with other girls and when he went iaside the house, he inunediatelv conie back aad informed that fhc deceased has bumt. Tbese facts are not sufficient to estabUsh that the appeUaut was also iaside the house or in the kitehen or the i'"!""M». -•<. l^ 1 ~.._fJB^iK| | ^ .^' •»;y"^~ appeUaat has caused bum injuries to the dece^ed. In the present case, prosecution has not adduced aay evidcncc concemiag fhe inotive of the crune. In fhe absence of any evidence, it is not suf&cient to connect ttie appeUant iu crune ia questk>n. The conviction of ftie appeUant is not legatly sustainable under law. 15. After appreciating tiie evidence avaUable on recotd, the leamed Additional Sessions Judge has convicted and sentenced the appellant under Sectioa 302 of fhe IPC, but has not coasidered the above aspect of fhe case, which did not iacruaixiate the appcUant in fhe criine in question. 16. On close scrutiny ofthe evidence, we do not fiad any case of comnussion of Iioinicidal death of fhe deceased- Saajay by the appeUaat. The conviction of fhe appeUaiit is not sustaiuable undcr ]aw. 17. Por the foregoing reasons, the appeal deserved to be aflowed and fhe judgmcnt impugned deserves to be sct aside. Consequenfty, fhe appeal is aUowed. Convictton and sentence awarded to fhe appeUaat under Sectk>n 302 of the IPC aic sct aside aud the appeUaat is acquitted offhe chai^e. The appeBant is in custody. He be released forthwith, if not required in aay other case. R.L. Jhanwar Judge sunita Sd/- T.P. Sharma Judge