r';.^v \-i-r HIGH COURT OP CHHATTISGARH. BILASPUR CriminalAppeal No.518/200S APPELLANT VBRSUS RE8PONDBNT Punai Raxa s/o Jhinga Ram Korwra, aged about 30 years, R/o vill^e Ufia, PS Rajpur, District Sm^uja (CG) The State of Chhatdsgarh <L. CRIMINAL APPEAL U/S 374 (21 OF THE CODE OP CmMINAL PROCUDERE Appearaxice: Shri N.K.Mehta, couusel for fhe appellaiit. Shri S,R.J. Jaiswal, Panel Lawyer for the State, Divisiosi Bexich:- Hoa'ble Sfari T.P. Sharma 8s Ho2i?fele Slxri R.L.Jhaxiwar,JJ Pes T.P.Sharana, J. ORALJUDGJMBNT (15.2.2011) Challenge m this appeal is to the judgment of conviction mid order of sentence dated 6,1,2005, passed by tiie 3rd Additional Sessions Judge (FTC) Anibikapur, Sarguja ia S.T.No.315/2004, whereby and wherc under fhe leamed Additional Sessions Judge, after holdmg fhe appellaat guUty for coniniission of culpable homicide aoiountmg to miirder of Lildiani Bai, convicted the appeUant under Section 302 ofthe IPC aud seuteuced for life imprisonment aad fiiie of Rs.1000/-, m defanlt ofpayment offine to fdrther undergo S.I, for 6 inonfhs. 2. The conviction is impugned on the ground that witih.out fhere being aiiy iota of evidence sufficient for conviction of fhe %^J appeUant, fhe leamed Additional Sessions Judge has couvicted and sentenced the appeUaiit as a&resaid xnentioned aad thereby coBisiiitted illegality, 3. As per case ofprosecution on fhe fateful day of8.5,2004, at night, while deceased was retumio.g froin the house ofTijna after attending xsiarriage cereniony along witih. fhe appellant, fhis appeUaat assaulted her aad caused her deafh. Second day, iiierg was mtimated vide Ex, P/9 by Maagra Rani (PW-1). The Investigatiag Ofllcer left for the scene of occurrence aiid after summoning witoesses vide Ex. P/7, mquest over fhe dead body ofthe deceased was prepared vide Ex. P/6. Dead body was sent for autopsy to Govt Hospital, Rajpur vide Ex. P/11, where Dr. K.P.Vishwakarma (PW-8) conducted autopsy vide Ex. P/6 aad found following iujuries : i. One bruise of 2x1 cni over forehead ii. One bruise over left side ofthe chest of2 x 3 cni iii. 3rd, 4th, 5th and 6th ribs were found fractured. iv. Haematoma of 3 x 3 cm found upon left lung, Cause ofcleafh was cardio respiratory arrcst aad death was homicidal m nature. FmaUy, FIR was lodged vide Ex. P/12. Spot Map was prepared vide Ex. P/3. Blood staiaed soil aad plaui soU, was seized froin fhe spot vide Ex. P/4. Duriag fhe course of m.vestigation, accused was taken into custody. He xnade disclosure statement of stick vide Ex. P/1; it was recovered at the mstaace of fhe appellaat vide Ex. P/2, Statements of ttie witaesses werc recorded under Section 161 of fhe Code of Crmxtaal Procedure, 1973 (in short the Code), 4. After coiapletion of iavestigation, charge sheet was filed beforc fhe Judicial Magistrate First Class Ambikapur, who m tuni, committed fhe case to the Court of Sessions, Sarguja at .s- ^ Anibikapur, from. where fhe learaed Additional Sessions Judge received fhe case on toraasfer for tdal. 5. In order to prove fhe guUt of the accused/appellant, prosecution examined as niaiiy as 11 witaesses. Accused was examiaed under Section 313 ofthe Code, ia which, he denied the circuBistances appearing agaiast him, ianocence aad false impUcation ia criine in. question was claimed. 6. After aifording opportunity of hearing to fhe parties, fhe leamed Additioual Sessions Jiidge convicted aad sentenced the appeUaat as aforesaid iiientloned. 7. We have heard Shri N.K. Mehta, leamed counsel for fhe appeUaixt aad Shri S.R.J. Jaiswal, learaed Paael Lawyer for the State, perused fhe judginent mipugned aiid record of the trial Court. 8. Leanied counsel for fhe appellaiit vehenienUy argued th.at conviction of th.e appeUaat is based on the circuiastantial evidence, but prosecution has not proved aay of the circunistaace against fhe appeUant. As per case of prosecution, appellaat aad deceased were coiaing fronx fhe house ofTijna Bai after attenduig fhe inardage cereinony, but prosecution has not proved the fact fhat fhe deceased was seen aUve last time ia fhe coinpany of fhe appellant. As per niedical evidence, 2 bruises were found over the body of the deceased, resulting iato fracture of 4 ribs aad Doctor has admitted fhat ttiey may cause as a result of fallmg. Bofh the mjuries fouud on front part of fhe body i.e. chest and forehead revealed fhat fhe deceased feU down on fhe stone aad received tiie aforesaid iiijuries resultmg iiito her deafh.. In absence of aay cliachiag evidence, conviction of the appellant is not sustaiuable under the law, ^.:s^t ^_.. <<_. 9. On the other haiid, learaed counsel for fhe State veheinenfly opposed fhese arguments and submitted fhat prosecution has proved its case beyond reasonable doubt. 10, In order to appreciate the argumente advanced onbehalfof fhe parties, we have examiaed the evidence adduced on behalfof the prosecution. 11. As per evidence ofDr. K.P. Vishwakarma (PW-8), aforesaid 2 iajuries were found on the body of fhe deceased along with fracture of 4 ribs, As per autopsy report Ex. P/6, he has adinitted ia cross examination that if aaybody falls ou fhe stone theu he inay receive such iajuries found over fhe body of fhe deceased including fracture of ribs. In fhese circuinstances, it is difficult to hold fhat fhe deceased sustamed mjuries on account of assault by fhe appeUaiit. Prosecution has exainiaed ofher witaesses. As per Maiigara (PW-1), deceased has left fhe house of Tijna after attendiag inamage ceremony alone aad she was goiag to her house. In para 5 of his cross exasiiination, he has admitted titiat fhe appeUant has taken his wife iaside the house after the mcident aiid on second day, she died. Soma (PW-4) fafher of fhe deceased has deposed that he was iaformed by Dhanisiati fhat fhe appeUaat has caused ipjury to fhe deceased i,e. his wife Likhani Bai. But, Dhaninati (PW-5) has not corroborated fhe evidence ofSouia(PW-4), 12. ActuaUy, ia fhe present case, prosecution has not coUected aiiy evidence relatmg to last seen fheory aad causiag mjury by the appeUaiit or fhe death was honxicidal ia nature. On fhe basis ofevidence ofDr. K.P. Vishwakarma (PW-8) iajury uiay be caused by faUiag upon the stone, Prosecution has uot coUected aay crcdible aad clinchisig evidence agaiast the appellaat. While convicting aad senteuciag fhe appeUant, Court below has not '.^^^ ® considered the evidentiary value of prosecution witoaiesses aad thereby committed illegality. 13. For the foregomg reasons, titie appeal deserved to be aUowed aad it is hereby aUowed, Conviction aad sentence of the appeUaat under Section 302 of the IPC is hercby set aside. He be set at liberty at once. He be released forthwifh, ifnot required iii aay oth.er case, sunita Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge