HIGH COURT Oi? CHHA’I‘TIS‘GARH AT BILASNER Criminal Aggeai No.373z2003 APPELLANT {Ia jam Bhagwano sjo Jagannath Ni311ad aged about 57 years, Rssidexlt of Bhmyapalxi, ”I‘hana Lajlunga Distzict Raigm‘h {CG} IV%R$!§$ \ RESPONDENT K T116 State of Chhatrisgarh ’I‘hmugh (CG) £116 District Magistrate, Raigaz‘h v Shn‘ Shailencha Dubsy , cmmssl for the appellant. Shri SRJ. Jaiswai, Panel Lawyer for the State. Diviéio’n Bench:- gion’ble Silti T.P. gamma 8a \ Hen’bie smi R.L.Jhanwa?:';l ()RAL JU§GMENT {10.12.2010} Per T.P.S§1arma, J. Challenge in this apg and order of sane A€idirional Sessions Juégs nca dated {FTC}, §2.l.2003, Raigarh, passed by and Whereunder tha learned Additionaj Sessions Judgé, { the 3N in S.’1‘.No.180j2002, whereby after holding the appellant guilty for co ' ' Imssmn of cuipabie 2. The conviction is impugned on the ground that Without thsre being any iota of evidence sufflcient for conviction of the appeilant, the learned Additional Sessions Judge has convicted and sentenced the appellant as aibrementioned and thereby committed illegality. 3. As per case of prosecution, on fateful day of 8.8.2002, at about 10.30 in the night,’ Santoshibai (since deceased), daughter in law of the appellant was present in the house; appellant was also residing in the same house. On that day, the appellant told the villagers that snake has bitten his daughter in law Santoshibai; then villagers came to his house; they called one village expert relating to snake bite for orthodoxy treatment. Santoshibai regained consciousness then she told that this is not a case of snakebite but the appellant has assaulted her, and she is carrying pregnancy; she requested for immediately s’hi‘iiing her to hospital. The villagers proceeded for arranging a vehicle for shifting Santoshibai to the hospital, but she died on the spot before taking her to hospital. One snake was also taken out from the Almn‘ah Thereafter, husband of Santoshibai, Ramcharan (PW-9) was informed that his father has killed his wife. Ramsai (PW— 1) came to know that the appellant has killed his daughter in law; he went to Police Station Lailunga and lodged FIR vide Ex. P/ 1 and merg intimation vide Ex. P/ 2. lnvestigating othcer left for the scene of occurrence and after summoning witnesses vide Ex. Pi4, inquest over the dead body of the deceased was prepared vide Ex. P[5. Blood stained and plain soil was recovered from the spot vide bx P/ l2. Dead body was sent for autopsy to Government Hospital, Lailunga, where Dr. S. Upadhyay (PW-10) conducted autopsy vide Ex. P/ 14 and found following injuries: incised wound over left palm with amputation of all iingers; size of injuries was 10 x 5"; bones were found cut i 3 11 Incised wound over right side of the chest of 10 x 1"x bons deep 111 Incised wound over back of shoulder of3 X 3"x bone deep iv. lncised wound over back of right shoulder of 2 x 1" x bone deep v‘ Incised wound over right shoulder of eame depth vi. Abrasion of 2 x 1’.’ over right shoulder vii. Incised Wound over neck of 4 x 1" X bone deep viii. incised wound of 1 x 4" X bone deep over chin ix. Incised Wound over middle fmger of 0.5 x 1" x bone deep Major veins of the neck were found out Mode of death was opined to be syncope as a result of excessive haemorrhage and death was homicidal in nature. During The course of investigation, accused was taken into custody. He made disclosure statement of betel axe, vide Ex. P/9; same was recovered at his instance vide EXP] 10. Blood stained lungi of the appellant was seized vide Ex. P/ 11. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code). 4. After completion of investigation, charge sheet was fited before the Judicial Magistrate First Class, Gharghoda, who in turn, committed the case to the Court of Sessions, Raigarh, from where, the learned Additional Sessions Judge received the case on transfer for trial. 5. ln order to prove the guilt of the accused/appellant, prosecution examined as many as 10 witnesses. Accused was examined under Section 313 of the Code, Where he denied the circumstances appearing against him, innocence and false implication in crime in question was claimed. t @ 6. After affording opportunity of healing to the parties, learned Additional Sessiozls Judge, convicted md sentenced the appeliant as aforemenubned. 7‘ We have heard C§hn Shailendm Du’bey, learneci counsel for the appeualit and Shri S.R.J. Jaiswal, learned Paoel Lawyer for the State, judgment impugned and record of the Court beiow perused. \ 8. Learned counsel for the appellant vehemently argued that although thls iS a case of murder ofdaughter in law by her father in law. but only on account of charges, conviction of the appellant under Section 302 ofthe IPC is not sustainable under the law and there is no cogent and credible evidence sufficient. for conviction of the appellant. As per initial story of prosecution, firstly, this‘was a case of snakebite and thereafter, appellant has committed homicidal death of the deceased but, thé' eil’idence adduced on behalf of the prosecution does not support the aforesaid initial story of prosecution or any other story of prosecution, therefore, in absencerof detinite and conclusive evidence, appellant is entitled for acquittal. 9. Can the other hand, learned counsel for the State opposed these arguments and submitted that conviction of the appellant is substantially based on dying declaration made by the deceased to Devki Bai (PW—2) and extra judicial Confession made by the appellant before Pyare Dev Panda (PW-7) therefore, the conviction is sustainable under the law. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11. in m6 present case, homicidal death as a msult of fatal injury found over the body of the decaased - Santoshibai has not been substantially disputed on behalf of the appellant, .011 ihe other hand, it is established by the evidence of Dr. S. Upadhyay (PW—10) and autopsy report EX.P/ 14 and death was homicidal in nature . e 12. As regards complicity of’the accused/appellant in crime in question is concerned, conviction is substantially based on dying declaration made by the deceased to Devki Bai (PW-2) and extta judicial confession made by the appellant before Pyare Dev Panda (PW-7). Dying declaration if proved to be true then the same is sufficient for conviction of the appellant. In the present case, as per evidence of Devlu' Bai (PW~2), she heard the case of snakebite to Santoshibai then she visited’the house of Santoshibai, at that time, sh‘e 'was unconscious but after some time when she regained consciousness then she told that her father in law has assaulted her and‘thereafter she died. In her cross examination, she has specifically stated that when she Visited the house of Santoshi Bai she was unconscious, she has not stated anything to her. As per evidence of Pyare Dev Panda (PW-7) he was also informed that that was case of snakebite and he along with some other persons visited the house of appellant; Sapera also came for treatment and after treatment of Sapera, Santoshibai regained consciousness, she demanded water, thereafter, she told that this is not a case of snakebite, but 4 persons assaulted her then she also told that she is feeling ashamed relating to the act of the appellant; he went for arrangement of a vehicle for shifting her to hospital. Thereafter, he heard the sound of appellant, saying that he has assaulted his enemy Santoshibai. In para 13 of his cross examination he has admitted that the appellant was telling him that he has assaulted his enemy. As per para 10 of his evidence, when he visited the house of Santoshibai, ha saw that her hands W€re broken, Sweiling was found over the body. As per his 6vidence when he heart‘i the words 0f the appellant thai he has kmed his €nemy Santoshibai, thereafter, he has not visited the house of Santoshibai. PaJa 7, 10 and 13 of eviCience of this witness revealed that this witness has visited the house of Santoshibai only for one time and at that time, he has seen the injuries over her body including breaking of hand i.e. grievous injury and he was informed that this is a case of snakebite, thereafter, he has not visited the house of Santoshibai or the appellant. If he has seen grievous injury on the body of the deceased for the first time, then Why he 'beheved theestory of snake'bite. This evidence also shows that the appellant has assaulted Santoshibai for one time and that is the thst part of the incident; there is no any second part of the incident. This fact also finds support from the contradictory evidence ofrDevki Bai (PW-2) that this was ‘not a case of snakebite, but this was a case of assault by the appellant. Howeverlshe has not noticed any injury over the body of the deceased As per autopsy report Ex. P/ 14, there were 11 visible bleeding injuries over the head and neck including hacture and chopping of hngers of the hand. These injuries were not triile in nature and were not unnoticeable, but witnesses have not deposed that they have seen those serious injuries and even they have believed the story of snakebite. Evidence of Devki Bai (PW—2) although is not unreliable, but it revealed that the deceased has made dying declaration for the first part of the incident and at that time, she was not assaulted by the A appellant. 13. As per evidence of Pyare Dev Panda (PW-7) he has not seen the body of Santoshibai after extra judicial confession made by the appellant to him; prior to making of such extra judicial confession, he has seen the injured body of Santoshibai, but he has not a~ deposml anything relating to othsr fatal injury, including chopping of fingers of the hand. This contradictory evidsnce clearly revealed that the aforesaid witnesses have not seen the injuries of the alleged dying declaration and it does not find support from the Circumstances or the evidence of other witnesses. This is a case of commission of murder by the father in law and prosecution is requixed to prove the case with cogent and clinching evidence of definite character, but the evidence adduced on behalf of the prosecution is contradictory and divergent in nature and contradicted the initial story ofprosecution. 14. In these circumstances, the evidence adduced on behalf of the prosecution is not suiiicient for drawing any definite conclusion relating to the guilt of the appellant,‘ consequently, appellant is entitled for benefit of doubt. While convicting and sentencing the appellant under Section 302: of the IPC, Court below has not considered the contradictory evidence and thereby committed illegality. Conviction of the appellant on the basis of such contradictory and unreliable evidence is not sustainable under the law. 15. Consequently, appeal is allowed, Conviction and sentence of the appellant under Section 302 of the IPC are hereby set aside. He be set at liberty at once,tif not reqmred in any other case. 4 J~e ‘9 \ Sd/— sw— mp. SHARMA R.L. Jhanwar Judge l Judge