HIGH COURT OF CHHATHSGARH AT BILASPUR Criminal Aooeal No. 863/2002 APPBLLANT ACCUSED VERSUS Puraa Lal Sahu, &on of Goviad Sahu, aged about 34 yeara, resMent of village Nayapara Wand, Mahasainuxid, PoMce Station Mahasaoiund, Distdct Mahasamund (Chhattisgarh) h»» ^ ^^^SPONDBNT PROSECUTION State of ChLattisgarfa Through PoUce Station- Incharge Mahasaaxuxid, GRIMINAL APPBAL UNDER SBCTION 374 ( 2 1 OF THE CODB OF CmMINAL PROCEDURE Appearattoe: Shri Shailendra Dubey, counsel for fhe appellaat Shri Rakesh Kuinar Jha, Dy. Govenunent Advocate for the State. Divisioa Bench:" Hoa'ble Shri T.P. Sharma & Hon^ble Shri R.L.Jhanwar.JJ Per T.P.Sharma, J. OJRALJUDGMBIJT (02.02.2010) 1. Challenge io. fhis appeal is to fhe judgm-ent ofcoxiviction atid order of sentence dated 23.04.2002, passed by fhe First Additional Sessions Judge, Maliasamiund (CG) in Sessions Tnal No« 327/2001, whereby and whereunder fhe leamed Additional Sessions Judge after holdiag fhe appellao.t guUty for conmiissioii of culpable hoxnicide, amountuig to murder of his wtfe -Ishwad Bai, r iL^^ convicted fhe appeUaat under Section 302 of fhe IPC aad sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, ia default ofpayment offine to further undergo R.I. Ibr 3 Bionfhs. 2, The judginent iaipugned is chaUenged on fhe ground fhat wifhout aiiy iota of evidence^ fhe Coiut below has convicted aad sentenced fhe appeUarit as above and fhereby committed iUegaMly, 3. The case of fhe prosecution ia brief is fhat fhe deceased- Ishwari Bai was residiag wifti fhe appellaat at viUage -Gorkheda- Borid, District- Mahasamund near the house of Khemarao Sahu (PW-6). On the fateful day of 4.7.2001, fhe appellant and fhe deceased went to forest for collecting fuel and fhe deceased was seen m fhe compaDy offhe appellant aMve last time aad afterwards her dead body was found on 7.7.2001 ia forcst Khemarao Safau (PW-6) searched for ftie appellant aad flie deceased and fiiiaUy ffae dead body of the deceased was found in the forest» Thereafter, he lodged xnerg iatunation vide Ex. P/1 and on the basis of aiierg enquiry, Pirst Infonxiatioii Report was lodged vide Ex. P/11 and Ex. P/12. Inquest over the dead body was prepared vide Ex, P/2. One axe wifhout haadle was seized fix)ia the spot vide Ex. P/3, Dead body was sent for autopsy vide Ex. P/5-A. Autopsy was conducted by Dr. N.K.Maadape (PW-4) vide Ex. P/5 and found that fhe dead body was putrefied and decayed, fhereforc, no definite opinion could be given regardiag ftie cause of deafh, Sealed clofhes of fhe deceased after autopsy were seized vide Ex.P/6. Spot raap was prepared vide Ex. P/10. Clothes of fhe appeUaait were seized vide Ex, P/14. The accused/appeUaiitwas taken iiito custody. He niade disclosure stateiaent ofaxe aad clofhes vide Ex. P/15. Seized articles were sent for chemical exammation aad presence of blood over fhe axe was coiifimied vide Ex. P/16, 3 <^ oCV Iwi—1 Stateinents of fhe witaesses were rccorded under Section 161 of the Code of Criminal Procedure, 1973 (in short "Code"). 4. After completion of iavest^ation, charge sheet was filed before tihie Judicial Magistrate Pirst Class, Mahasamund, who ta tum, coiniaitted the case to fhe Court of Sessions, Raipur, fi'om where, fhe learaed Additional Sessions Judge, Mabiasajmund received the case on transfer for tdal, 5, In order to prove fhe guilt of fhe accused/appeUaiit, prosecution has examined as maay as 10 witaesses. Accused was exaniiaed iinder Section 313 offhe Code, ia which, he denied tlie circuiiistances appearing agamst hira, pleaded ianocence aa.d false iinplication. 6. After affordiag opportunity of hearing to the parties, leanied Additional Sessions Judge has convicted aad sentenced the appeUant as aforenientioned. 7. We have heard Shri Shatlendra Dubey, learaed counsel for fhe appeUant aiid Shri Rakesh Kumar Jha, leaaied Dy. Goverrmient Advocate for ftie State, penised tfae judguieat aad record offhe trial Court. 8. Learaed counsel for fhe appeUant vehemently argued that the case of prosecution is based on extra judicial confession made by fhe appeUaat before Ajay Sahu (PWr-5) and circumstaBitial evidence of 'last seen together" by Khemarao Sahu (PW-6), but fhe evidence of Ajay Sahu (PW-5) aad Khemarao Sahu (PW-6) does not iaspire confidence as also fhe same is not reUable, 9. On fhe other haad, leamed counsel for fhe State oppoaed fhese argunxents and subinitted fhat prosecution has proved its case beyond reasonable doubt \ .^ 10. In order to appreciate fhe arguments advaaced on behatf of fh.e parties, we have exaxauied fhe evidence adduced on behalf of the prosecution. 11. In fhe present case, autopsy was conducted by Dir. N,K. Maadape (PW-4), who deposed ia his evidence on the basis of autopsy report Ex. P/5 fhat fhe dead body was putrel&ed aiid decayed, therefore, no definite opiaion rclating to cause of deafh was possible. 12. In fhe present case, dead body of fhe deceased-Ishwari Bai was foiind io. fhe forest ia decayed condition. On fhe basis of autopsy report, it is difiicult to hold fhat fhe death of the deceasal was homicidal in naturc. However, homicidal death may be inferred on fhe basis of evidence of ofher witaesses. The convictioai is based on extra judicial confession mLade by fhe appellant brfore Ajay Saliu (PW-5) and the evidence of 'last seen togefher? of Khemarao Sahu (PW-6). Ajay Sahu (PW-5) has deposed ia his evidence fhat dead body of one woraaa was found ia fhe forest. On fhat day, fhis appellaat came to him, he was abnormal and told fhat be has killed his wife. On fhis, he advised him to go to Polfce Station aad surrender hioiself. The evidence of prosecution rcvealed fhat fhe appeUant has not surrendered himsetf before fhe Police authonly. This witaess has also uot stated fhat whefher he was so closed with I^IT" to coufess fhe crime which inay go agaiast him. In para 3 ofhis cross exammation, he has admitted that the appeUaat was his customer and casuaUy he used to purchase bidi aad niatch box J&om hini< It shows fhat he was not closed to hini. 7t> ^^ ^N- 13. Another witness Khemarao Sahu (PW-6) relatmg to <last seen togefher" has deposed in his evidence fhat prior to fhe date of incident, appellant aad his wife (deceased) were working io. his house, but after some time, fhey went to forcst to collect fiiel. When they did not retum from fhe forest fhen he went to PoUce Station aad lodged report. He also searched fhe appeUaiit aad tas wife. After sonie time, fafher of fhe deceased also coine to him along wifh soine ofher persons, then fhey went to forest for searchiag the appellant aad fhe deceased, but (hey did not find fhem. After some time, they agam went to search fhem aad tbuaid the dead body of the deceased ia fhe forest Then he mtimated to poUce relatmg to merg vide Ex, P/1. In para 4 of his evidence, he has adinitted fhat two weeks prior to fhe date of incident, fhe appeUant and his wife caoie to his house for laboiur work, They were residmg in his house, Relations between the deceased aiid fhe appeUaat were cordial. The accused/appellaat has tdken a specifiic defence fhat he had gone to Orissa for labour work and when he came back after 5 days, he caoie to know about fhe deafh of his wife. This witaess has speci&caUy deposed fhat on second day when fhe appeUaat aiid his wife did not come back> he wrait to PoUce Station aad has lodged fhe report. However, prosecution has uot filed or proved aay such report lodged by fhis witaess. He was not under obUgation to search the appeUaat aad his wife, but his evidence rcvealed fhat he had regularly searched the appellaiit aad his wife. The act of fhe present witoaess is uruiatural, He went to PoUce Station aiid lodged merg mtimation. Even if fhe evideace of this witaess is admitted, then also only it can be inferrcd tihat he has seen the deceased m the compaay of the appellaat alive last tibaie, but this evidence does not prove the fact that fhe appeUant or aay other person has caused homicidal deafh offhe deceased. :^>1. . .; ^- /'£:w~ii \ i l /y ^ ^^...^' ^yf'r^'' Irtn 14. In fhe present case accordmg to the opinion of Doctor, the cause of death was not certam, but it caa be mferred on the basis of ofher circuinstaaces. Prosecution has not adduced aiiy ofher evidence to show that fhe death of the deceased was homicidal in nature aad evidence ofAjay Sahu (PW-5) and Khemarajo Sahu ^PW- 6) does iaspire confidence and m absence of fhe evidence relatmg to homicidal deafh of fhe deceased, fhis conviction of fhe appeHaat iinder Sectiou 302 offhe IPC is not sustain^able. 15. After appreciation offhe evidence avallable on record, Coixrt below has convicted and sentenced the appeUant as above, but lias not considered the fact fhat fhe circumstaaces adduced oa behalf of the prosecution are not sufficient for drawiag an infercnce th.at the appellant is the oiily person, who has caused death of his wife aad except fhe appellaat uobody has caused the deafh of fhe deceased and the deafh was homicidal m nature and fhereby, the Court below has coiamitted iUegaUty, 16. For fhe foregomg reasons, we are offhe considered vfew that prosecution has not proved the hoinicidal deafh of fhe deceased and the fact fhat the appellaat has caused fhe homicidal (teath of fhe deceased beyond reasonable doubt. sunita 17. Consequently, the appeal deserves to be allowed and fhe same is aUowed. Conviction aad sentence awarded to the appeflaat uiider Section 302 of fhie IPC are set aside, The appeUant is in custody. He be released forfhwith, if not reqxiired ia aay otber case, Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge