v criminal Agneal No.4312005'j ; f a Dhuncshwar Pailaa son 0f S1312“: l LamruRam, aged 22 ‘ycalfs, ‘ resident o village Laduwapara laldexg ' Police ‘ Station ‘Shankergarh, Disuict Sarguja (CG) APPELLANT an jail) VERSUS State of Chhattisgarh 4 CRIMINAL APPEAL “[8 374 11) OF THE CODE OF CRIMINAL PROCUDERE Appearance Shn J S Baralk counsel for the appellant Shri Arun Sao, Government Advocate for the State Division Bench:- Hon’ble shxl T.P. Sharma & Hon’ble Shri R.L.Jhanwm,JJ onM. Junemm' (14.12.2010) Per T.P sharma, J. Challenge m thls appeal 1s to the Judgment of convmuon ma and order of sentence dated 2 12 2004 passed by the Secondr § Addltlonal Sessmns Judge, Ambikapur Dlstnct Sarguja (CG) 1n s.T.No. 173/ 2004, wheieby and whereunder the leamed Additional Sessions Judge after holding the appellant guilty for commission of > 3 culpable hom1c1de amounting to murder of Jamam, conwcted the >- appellant under Sectlon 302 of the IPC and sentenced for hfe A mpnsonment and fme of Rs.1,00,000/ , m default‘of paymentof fme to fuither undergo R.I. for 5 years. L {I HIGH COURT OF CHHATTISGARH AT BILASPUR «j ; m; \XOA 2. The conv1ct10n 1s unpugned on the ground that w1thout there ; bemg any 10ta of ev1denca suEclcnt for oonvnuon of the appcnan the learned Addmonal Sessmns Judge has convicted and senwnced the appellant as afommcnnoncd and thereby eqmrmttedm illegality, 3. As per case of prosecutigm, on 2.1.2004, at about‘«9.00 pm; the appellant resident of village Laduwapara, Laldera, Polic Stauon Shankargarh was present m vmage Chalgalr pmbabl there was marriage ceremony On account of some dlspute of ; Pmku and Rav1 Wlth Jaimm, Plnku Raw and the appellant caused hom1é1da1 death of Jan-am Dead body of Ja1mm was found near the bath of Ram Kunwar Merg was mumated by Panda Kanwar (PW 1) vxde Ex P/l On the ba31s of merg, nnally FIR was w Ieglstered Vlde EX P 17 Aner summomng wnnesses Vlde EX P/2iw- . mquest over the dead body of deceased was prepared v1de Ex. P/7 p I Spot map was prepared v1de Ex PI3 by Patwan and v1de Ex P/4 by Investlgatmg o$cer One p1ece of cloth and button wa recovered mm the spot v1de Ex P/8 Dead body was sent for ' autopsy to CHC Shankargarh v1de Ex P/ 18 Dr J KuJur (P conducted autopsy v1de Ex. P/28 and found followmg mjun‘es‘ Bruises in fmnt of the neck of 1.5cm x 1/2 cm, r11 2cmx V4 cm to 3/4 x 1 cm m Bruises over mastoid region of 1.5 x» 1cm ’I‘Iachea was found &actu1ed Cause of death was opmed to be asphyxia as a result of throttling and death was homc1da1 m nature On the basis of statement of Mano] (PW-8) under Section 161 of the Code of“: ,f , Criminal Procedure,1973 (in short the Code), oh'ence was further- investigated. Torn pocket of shirt of the appellant Dhuneshwar l was seized kom the appellant vide Ex. P/9. One shixt,~which«1» button was broken was seized horn another co-accused Pinku vide t, «s e : y‘ s w W ‘ e x .- Ex. P/ 10. Statements of the Witnesses wem recorded under Section , -; 16 1 of the Code. 4. After compleu'on of investigation, charge sheet was hlcdu . befoze the ChJef Jud101al Mag1stmte, Amblkapur, who m turn e commuted the case to the Court of Sessmns, SarguJa, from when, the learned Addmonal Sessxons Judge recexved the case o»: transfer for tnal. DJ ‘ r 5&1‘ In order to prove the guilt of the accused/appellant, pmseeution ‘examined as many as 14 Witnesses.- Accused was . exammed under SectJon 313 of the Code when he demed the cn‘cnmstances appearmg agamst hJm Innocence and false unphcatmn 1n cnme 1n questton was cla1med Charge relatmg to V ~ Juvemle oEenders was tiled before the Juvem‘e Jusuce Board ‘ 6. Aher aharding opportunity of hearing to the parties, leamed w Addltlonal Sess1ons Judge, nv1cted and sentenced the appellant as aforemenhoned.- 7 . We have heani Shn J S BaraJk learned counsel for the appellant and Shn Arun Sao learned Government Advocate for the State, Judgment nnpugned and record of the Comt below pegused : 8. Learned counsel for the appellant vehemently argued that m ‘ the present case conv1ctlon 1s substanhally based on the ev1dencer ; of ManOJ (PW—8), whose ev1dence does not msplre conndence and a » trustworthy He ls the only w1tness, who deposed that he has seen» the mc1dent, but Ins statement under Sectlon 161 of the Code has been recorded alter 3 days of incident i.e on 5.1.2004. Prosecution has not on'ered any explananon that why hls statement has been Iecorded after 3 days and how Pohce came to > know that this w1tness has seen the meldent Because as per his statement vide Ex. D/4, he was threatened by the appellant‘and other persons, therefore, he has not narrated, the incident to y 7 n 33 u; 1 ~ 3 anybody Learned counsel further argued that evldence of ManOJ (PW 8) appears to be susp1c1ous and the conv1ct10n only on the basxs of cv1dcnce of th1s w1tness w1thout any further cormborauon o .a from mdependent soume, could not be _}ust and proper. 9. On the other hand learned counsel for the State opposed these arguments and subnntted that the ewdence adduced on behalf of the prosecutlon ls su$c1ent for convmtlon of the appellant and Court below has lightly convicted and sentenced , the appellant as aforesaid mentioned. 1% In order to apprecmte the arguments advanced on behalf of the parmes, we have exammed the ev1dence adduced on behalf of Inga the prosecutton. 11 In the present case hommdal death as a result of fatal mJuIy found over the neck of the deceased- Jaimm has not been substantially dlsputed on behalf of the appellant, on. the other hand, 1t 1s estabhshed by the ev1dence of Dr. J.Ku3ur (PW- 13)-~and a VI autopsy report EXP] 23 and death was homicidal in natuxe. 12. As reganls complicity of the accused/appellant in crime in r_ question is concerned, conviction is substantially phased on the evidence of Manoj (PW-8). As per case of prosecution, incident» took place in the village Chalgali at about 9.00 ppm. Present appellant is not a resident of village Chalgali but he is the resident p of Village Laduwapara Laldera, Police Station Shankargarh g Prosecution has not examined any Witness to show or prove the fact that why the appellant was present in Village Chalgah at the time of meident whether any relative of the appellant was pmsent a in Village Chalgali or he was havmg any cause for pmsence there Prosecution has also not collected any material to show that the appellant was havmg any motive for culpable hormoide amounting to murder of deceased Jmram Most of the Witnesses have not r- idenu'iied the appellant as a mlative of any person As per avidence of Mano; (PW-8) at the t1me of mc1dent he was present m the house of deceased Jaimm He was chewmg Tobacco and thereaiter, r ; whlle he was commg towa1ds hls house he saw that other Juvemlr , r od’enders Rav1 and Pmku wem gomg along w1th the pxresen$ appenant and JaJram Pmku also requested hJm to accompany, . but he refused then they went .towards the pond and he came hack u to h1s house As per para 2 of hls ev1dence after V2 an hour when howent to the field for ease there he saw that the appellant vian and Pmku were assaulung the deceased Jalmm Fmall appellant was s1tt1ng over the chest of Janam and pmsse neck seemg thls, he came back to h1s house and on second da he came to know that Janam has been murdered When Polw came he narrated the mcxdent to Pohce There ls contradiction m 111s Pohce Statement Ex D/4 and Court statement As per para 2 of lns ev1dence when Pohce came to h1s Vlllage he narrated the meldent to Pohce and as per document of Investigation Pohce conducted investigation on second day i.e. on 3.1.2004. But v statement of this witness Ex. D/4 has been recorded on 5t1.2004:n-» Ex P/ 1 merg intimation does not reveal the name of any assailant. Although, 1t has been recorded at 4 00 pm on 3 1 2004 afar a lapse of conmderable time of nottcmg the meldent by the Vilhger Even as per ev1dence of Mano; (PW-8), 3 accused along With the deceased went towards the pond and atter V2 an hour, when he a went towards the held then he saw the maident The appellant is not a res1dent of Vlllage Chalgah. Even there was no any opportunity for his presence at Village Chalgah and that too at 9 00 pm, the appellant was not passmg from that Village m‘ couisev of ourney. Statement of the alleged star witness Manoj (PW-8) recorded under Section 161 of the Code has been recorded after 3 ays of the incident, especially, when as per his evidence, he narrated the incident to Police when Police came andas per investigation document, Police came on 3. 1.2004. lf Manoj‘-(PW-8) a yl d y e s j h d Jaw m has nan‘ated the mc1dent on 3 1 2004 Whlch was the very bas1s of the case then Why 1t was not recorded on the same day mteraha .~‘= how Pohce came to know that ManOJ (PW 8) has seen the moldent. ‘ 0 ' In absence of any explanation on behalf of the pmsecunon, evidence of Mano] (PW-8) 1s not fully rehable and 1t can be used after corroboration. Prosecution has not examined any other Witness or. setof a W1tnesses 1n support of 1ts case As per sexzure memo Ex. P/ 8 on v p1e$e of cloth and one button was found near the place of meldent. 3;: Shut of the appellant of whlch pocket was tam and mlssmg has been sewed from the appellant vxde Ex P/9. One button has also been sewed ham the co accused Pmku v1de Ex P] 10' Both the» t arucles were suggesuve p1eces of ev1dence to connect the appellant » and another co-accused Pmku 1n cnme 1n quesnon, but the mason a t 13. ls best known to the prosecutlon Pmsecutlon has not placed the aforesald shxrt and torn plece of cloth button and shut 1n wh1ch one button was rmssmg Ev1dence of Manoj (PW 8) alone ls “‘1 su$c1ent for drawmg a defn’nte conclus1on that the appellant has v commltted culpable hom1c1de amountmg to murder of the:--. deceased—Jalmm Susplcmn, however gave cannot take place of ~_ legal pmof Whlle conwcnng and sentencmg the appellant under Secnon 302 of the IPC Comt bel w has not constdeied the quel of ewdence of ManOJ (PW-8) which ls not the star quality or ewdence on wlnch hance can be placed and thereby committed illegality. of doubt appellant 1s acqmtted of the charge of Sectlon 302 of the r I 14. Consequently, the appeal is allowed and alter givingsbeneht- IPC. Conwctlon of the appellant under Secnon 302 of the IPC and the sentence awarded thereunder ls hable to be and 1s hexeby set aside He be set at hberty at once He be released forthw1th 1f not mqmxpd in any other case. ‘ V v Sd/_ Sd" i R.L. Jhanwar ‘ T. P. Sharma Judge Judge W n a ‘ . e l