@ HIGH COURT OF CHHATTISGARH AT BILASPUR ‘ \ 3“‘ 3 Shri N.K. Mehta, counsel for the appellant Shri Sanjeev Agrawal, Panel lawyer for the State. & APPEAL UNDER SECTIQN 374 (2) OF CODE OF \_ i CRIMINAL PROCEDURE ORAL JUDGMENT (24.02.2011) Per T.P. Shanna, J. (1) Challenge in this appeal is to the judgment ofgonvictign and order of sentence dated 31/01/2005 passed by the 5‘3 Additional Sessions Judge (F.T.C.), Ambikapur in Sessions Trial No. 358/2004, whereby learned Sessions Judge amp ‘ holding the appellant guilty for commission of culpable; homicide amounting to murder of his father Veersingh, convicted the appellant under Section 302 of the I.P.C.' and sentenced him to undergo imprisonment for life andimposed , x ’ l A“! further fine of Rs.500/- in default R.I. for one year._ D.B: Hon’ble Shri T.P. Shanna, Hon’ble Shri Prashant K a; MishyuJJ. Criminal Appeal No. 424/2005 APPELLANT : Rajaram S/o Veersing,’ Age;50 (IN JAIL) years, Occupation-Agniculturist, R/o. Village-Jamkani, P.S.-Sitapur; District-Surguja (Chhattisgarh). » A Versus RESPONDENT : State ofChhattisgarh ‘ ,2, (2) Conviction is impugned on the ground that without §ny iot§ of evidence, Court below has convicted and sentgnaad the“ appellantand thewby committedillegality; M - (3) As per case of prosecution, on 8/06/2304 mbetvgeon 1;.00 ‘ am. to 1.00 p.m., present appellant assaulted his“ &the;“ Veersingh (since deceased) by axe and caused ‘his\ " ‘3 instantaneous death. Appellant went to the house of Mangal’ ‘ Ram (PW/5) md Ganesh (PW/6) and made extra judicial confession before them that he has committed murder of his father Veersingh. Ganesh (PW/6) has informed the actualé commission of murder by appellant of his father Veetsinglg toe brother of appellant. Pawan Kumar (PW/3) went to the plage of incident where dead body of the deceased was lying,“ thereaner, he went to the Police Smtion, Sitapur and lodged :' FIR vide EXP-6. Morgue was also recorded vide EXP-5.5x: Investigating omcer left for the scene of occln‘rence and aher summoning the witnesses vide Ex.P/l6, inquest over the dead body of deceased was prepared vide ExP/ls. Spot map was prepared by investigating officer vide EXP/7. Nazri naxa was ~ w prepared by Patwari vide EXP/8. Clothes ofthe deceased was ’ seized vide Ex. P/l. Blood stained soil and plain soil were c recovered hem the spot vide EXP‘13. Dead body of the 4‘ deceased was sent for autopsy to Government Hospital; l @ Sitapur. Dr. NR. Beck (PW/2) conducted me aumpsy*vide ' Ex P/3 and found fallowing injuries: 1. Depressed mark over 1611 temporo ocipitai ofskullr j ‘ 2. Hairs were stained with blood. 3. Incised wound in size 4 x 3"over right arm justrbelow the shoulder joint. 4. Fracture of Fumerus bone and fracture of skulibone. (4) V Mode ofdeath was homieidal in nature. v (5) puring ceurse of investigation, present appellant was taken into custody. He made disclosure statement of a‘xefvide Ex.P-ll and same was recovered at the instance of the appellant vide Ex.P-12 and lungi vide EXP-l4. Seized articles were sent for chemical examination to Forensic Science ’ Laboratory, Raipur. Presence of blood on axe and lungi seized at the instance of the appellant was confirmed vide £1; P-l7. (6) Statements of the witnesses were recorded under‘Section 161 ‘ ofthe Code of Criminal Procedure, 1973. Afterxcornpletion of . investigation, charge sheet was med before the Judicial Magistrate First Class, Ambikapur, who in turn,co :itted ‘- / the case to the Court of Sessions, Ambikapuf, &0m Where i learned Additional Sessions Judge received the case on transfer for trial. (7) ‘ (9) rLI" In order to prove the guilt of the accused/appqllant;< the prosecution has ‘examined as many as 10 witnessa. Accused was examined under Section 313 of the Code of Grimina} Procedure in which he denied the circumstances apye’aring against him and pleaded innocence and false implication in the crime in question. n 637 Aner affording opportunity of hearing to the patties, learned 5m Additional Sessions Judge convicted and sentenced the appellant as aforementioned. Leamed counsel for the appellant vehemently argued that? (10) evidence adduced on behalf of prosecution is not sufficient for convicting the appellant. He further submits that conviction of the appellant is based on evidence of Pawan f - Kumar (PW/3) and Ganesh (PW/6). Pawan Kumar (PW/3) has not stated in F.I.R. (EXP/6) anything relming topresence of the appellant near the dead body of his gand father and v was holding axe, but he has deposed the aforesaid facts first time in his evidence before the Court below, which doesnot inspire conndence. Ganesh (PW/6) has notdeposed‘anything against the present appellant, but seen the appellant holding. . the axe and keeping the axe in his house is not act of We have heard learned counsel for the parties, perused the judgment and record ofthe Tn'al Court. v (1 1) On the other hand, learned State counsel vehemently opposed (12) the appeal and submits that the evidence adduced on behalfof’ ‘ the prosecution itself is sumcient for convicting the appellant V i and the Court below has xightly convicted the appellant as aforementioned. commission sf oEence of murder. Virtually'this iswa case pf no evidence Learned counsel placed reliance in the matter of'Dhanna, -~ eta, Vs. State of Madhya Pradesh AIR 1996 SC 2478 in which the Supreme Court has held that if prosecution witness; ‘ did not refer to any role played by accused when hejgave : statement to police during investigation accmsed cannOt be > " convicted for murder on basis of improvement made by sa’d ‘ ‘ witness at trial. In order to appreciate the arguments advaneed on behalf of (13) the parties, we have examined the evidence adduced on behalf ofthe prosecution. In the present case, homicidal death of the deceased as a m (l4) Vecrsingh has not been substantially disputed on behalf of appellant, even otherwise it is established by the evidence of Dr: N.R. Beck (PW/2) and autopsy report ExB/Z that the ' death ofthe deceasedVeersingh was homicidal in nature. {‘7 ‘ a (15) As regards comp1icity of the appellant in thewctjime in a question, conviction ofthe appellant is substantially baoed on; _ ~ the evidence ofPawan Kumr (PW/3) and Ganesh (PW/5,}; j f1; H (16) As per initial case of the prosecution, thepa‘ppeljgj‘tr-nga‘gie ‘ extra judicial confession before Ganesh (PW/6), butjGainesh' V (PW/6) has not deposed anything relatingdto allegedhgggtrawj p e ‘f jgdicial confession made by appellant in his evidence: Awe: J his evidence, while he was sitting in his house andwgs taking s . meal, appellant came with axe and demanded weten which he ' provided, thereafter appellant ether keeping them in his. house went away from his house. (l7) As per evidence of Pawan Kuniar (PW/3), he did’not iind‘his grandfather Veersingh in his held, his dead body wagiyingin ~ ditch where he saw that the appellant was standing, besidether; j dead body of his grandfather. He was holding axe. l’awan: Kumar (PW/3) is the person who had lodgedEflhgvidew ‘ (EXP/6). As per F.I.R. (EXP/6) Pawan Kumar (PW/3) was _ informed by Ganesh (PW/6) regarding commissioned”: offence. He has not stated in F.I.R. (Ex.P/6) anything relating J p to presence of the appellant near the dead body of his grand V father Veersingh with axe. (l8) As held in case ofDhanna \(wra), the evideneeprelating to presence of appellant besides dead body ofthedeceased that too with axe is not safeto rely. Ganesh (PW/6) has not stated i i :,L— anything against the appellant and has not depqsed-ggnything' regarding the c i e in question. Holding the axe bywitself is not an oEence. Virtually in the present case, prosecution has not adduced any evidence against the appellant In absenge of r r any evidence conviction and sentence of the appelkngimdw* ' ‘ Section ofthe 302 PC is not sustainable under the; la (l9) While convicting and sentencing the appellanto‘under‘segu‘on ' *5? 302 of the IPC the court below has not considered aforesaid t i facts and thereby committed illegality. (20) For the foregoing reasons, the appeal is allowed, Conviction and sentences imposed upon the appellant under section 302'» n v ofthe IPC are hereby set-aside. He is set at liberty at'oneei He“ v be released forthwith, ifnot required in any other ease; J’ I i Sd/- ii l Sdl- T. P. Sharma lg l5rashant Kumar Mishra Judg’JV Judge l e