.\"^ 'r HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N. CHANDRAKAR, JJ. Appellant (In Jail) Respondent Criminal Appeal No. 558 of 2004 Deenanath, aged about 25 years S/o Uday Ram Manjhwar, Occupation - Cultivation R/o Village Batati Police Station Kapu District Raigarh Chhattisgarh Versus State of Chhattisgarh Through Station House Officer Police Station Kapu District Raigarh Chhattisgarh (CRiMINALAPPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Mr. R.S. Marhas, counsel forthe appellant. Mr. Akhil Mishra, Dy. Govt. Advocate for the State. ORALJUDGMENT (Passed on 01st September, 2011) PerT.P.Sharma,J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 22.05.2004 passed by the 2nd Additional Sessions Judge, Raigarh, in Sessions Trial No.206/2002, whereby & whereunder learned 2nd Additional Sessions Judge after holding appellant guilty for commission of culpable homicide amounting to murder of Shiv Prasad (since deceased), convicted the appellant under Section 302 ofthe I.P.C. and sentenced to undergo imprisonment for life and pay fine of Rs.5,00/-, in default of payment of fine to further undergo R.l. for 3 months. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. ^^ xY^y ^^s^^ 3. As per case of prosecution, on fateful day of 27.07.2002 at about 4 p.m. unfortunate deceased Shiv Prasad was sitting in front of house of appellant. On account of some dispute quarrel took place. Appellant took out heavy wooden object lying there andcaused repeated fatal injuries over the head of deceased Shiv Prasad, resulting into his instantaneous death. Police came to village, PW/-2-Ratiram gave merg intimation vide Ex.P/11 and Dehati Nalisi vide Ex.P/23. On the basis of Dehati Nalisi, F.1. R. was registered vide Ex.P/27. Investigating officer left for scene of occurrence, after summoning the witnesses vide Ex.P/2, inquest over the dead body of deceased was prepared vide Ex.P/3. Dead body of deceased was sent for autopsy to C.H.C., Dharamjaigarh, Raigarh vide Ex.P/24. Autopsy was conducted by Dr. A.S. Thakur (PW-10) vide Ex.P/28 and found fracture of both parietal bone. Death was homicidal in nature. 4. Blood stained soil and plain soil was recovered vide Ex.P/7. Blood stained clothes of the deceased were seized vide Ex.P/1. Spot map was prepared vide Ex.P/4. Patwari prepared nazri naksha vide Ex.P/5. Alleged weapon i.e. Musal stained with blood was seized from appellant vide Ex.P/9. Seized articles were sent for chemical examination vide Ex.P/19. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short the 'Code'). After completion of investigation, charge sheet was filed before the Judicial Magistrate, First Class, Dharamjaigarh, who in turn committed the case to the Court of Sessions Judge, Raigarh. Learned Second Additional Sessions Judge, Raigarh received thecase on transfer for trial. 6. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 10 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. 7. After affording opportunity of hearing to the parties, learned Second Additional Sessions Judge, convicted & sentenced the appellant as aforementioned. •^ /y ^ 8. We have heard tearned counsel for the parties, perused the judgment impugned and record of the trial Court. 9. Shri R.S. Marhas, learned counsel for the appellant submits that conviction is based on evidence of Ratiram (PW/2) and his previous statement recorded under Section 164 ofthe Cr.P.C. Ratiram (PW/2) in his Court evidence has not supported/corroborated his statement recorded under Section 164 ofthe Code Ex.P/16. Virtually, there was no prima-facie evidence to connect appellant with the crime in question and conviction & sentence imposed upon appellant is not sustainable under the law. 10.0n the other hand, Shri R.S. Marhas, learned Dy. Govt. Advocate for the State opposed the appeal and submit that Court below has rightly convicted and sentenced the appellant aforementioned. 11.1n order to appreciate the arguments advanced on behalf ofthe parties, we have examined the evidence adduced on behalfofthe prosecution. 12.1n the present case, homicidal death as a result offatal injury found over the vital part (head) of the deceased Shiv Prasad has not been substantially disputed on behalf of the appellant, even otherwise same is also established by the evidence of Dr. A.S. Thakur (PW/10) and autopsy report Ex.P/28 that death of deceased was homicidal in nature. 13.As regard complicity of the appellant in crime in question is concerned, conviction is substantially based on evidence of Ratiram (PW/2), lodged merg intimation Ex.P/11 and statement recorded under Section 164 of the Code as Ex.P/16. Except Ratiram (PW/2) prosecution has not examined otherwitnessesin support of the case of prosecution. Inter alia, other witnesses have not supported the case of prosecution. In Court evidence of Ratiram (PW/2) he has deposed nothing against the appellant. If his previous statement recorded under Section 164 of Code as Ex.P/16 and merg intimation Ex.P/11 may be used for corroboration but it cannot be substantial evidence/statement especially in the light of Court evidence given, but virtually this is a case of no evidence. 14-WhJle convicting and sentencing appellant under Section 302 ofthe IPC, Court below has not considered the evidence of Ratiram (PW/2) and ^•••^'€- .^' ^ ' w .^'^".^'y^'^: ^ heavily relied upon statement recorded under Section 164 of the Code Ex.P/16 and thereby committed illegality. 15.Consequently, the appeai is allowed, conviction of the appellant under Section 302 of the I.P.C. is set aside and he is acquitted of the charge. Appellant is in jail. He be set at liberty and be released forthwith, if not required in any other case. Vijay Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge h> K