v HIGH COURT OF CHHATHSGARH : BILASPUR (Division Bench) CORAM: Hon'ble Shri Vijay Kumar' Shrivasfava (Ki Hon’ble Shri Dhir‘endr‘a Mishr‘a, J. J. CRIMINAL APPEAL NO.112 of 1999 Appellan'r : Pram Lal 5/0 Mindhu Ram Mochi Aged about '25 year's 'R/o Kholiyapur‘i PS Puigaon Dis‘i-Durg (CG) Vs Responden'r : S‘l'aTe of Chha‘rfisgarh Th rough P5 : Rajnandgaon Chha‘r‘risgarh PRESENT: Sm'i' Kimn Jain, counsel for The appellant Shri CR Sahu, Panel lawyer for The S‘l’a'i'e. JUDGMENT ( Delivered on 4Th May 2006) Per Hon'ble Shri Dhirendra Mishr‘a, J. The appellan‘r has preferred This Criminal Appeal under Sec‘i'ion 374(2) of 1'he Cr.P;C. as he has been convic’red by learned Addifional Sessions Judge, Rajnandgaon in Sessions Trial No.167/97 vide his Judgmen‘i' da‘i'ed 09.11.1988 under SecTions 394 and 302 of 'ihe IPC and senTenced To Undergo rigorous imprisonmen'r for five win- , . l i years and To pay a fine of Rs.500/— under Sec‘rion 394, life imprisonmenf and fine of Rs.500/— under Secfion 302, and in defaul'r of paymen‘r of fine amoun‘r To fur‘rher' undergo simple imprisonmenf of Two monfhs on each counT. 2) Case of The prosecuTion, in brief is ThaT on 1005.1995 aT abouT 8 am, deceased GayaTribai wenT To coliecT karan seeds in The field and when she did noT reTur'n for Taking her meal, her husband Subhavu wen'r To search her. AT abouf 4 'pm, he found The dead body of GayaTribai lying in The field. The maTTer was reporTed by Rajkumar in The Police sTaTion, Rajnandgaon whereupon merg inTimaTion was regisfered on The same day aT 7 .30 pm. Sub-InspecTor Jagdish Singh RajpuT proceeded for The scene of occurrence, conducTed inquesT over dead body of The deceased vide Ex.P/2 afTer due noTice To The wiTnesses vide Ex.P/3. The dead body was senT for auTopsy To The DisTricT HospiTal, Rajnandgaon. Dr Harish Kumar Joshil AssisTanT Surgeon conducTed posTmorTem and submiTTed his reporT vide EXP/15. On The reporT of Jagdish Singh RajpuT, crime No‘ 285/95, daTed 10.05.1995 under SecTion 302 and 394 of Cr.P.C.’ was regisTered againsT unknown persons aT abouT 23.15 hours. SiTe plan of The place of occurrence was prepared by Jagdish Singh RajpuT vide EXP/10. "AfTer Two years of The incidenT, on The basis of memorandum of The accused under SecTion 27 of The Evidence ACT daTed 17.05.1997, a silver plaTe weighing 238 gms, a‘golden nose ring and Sarafa regisTer for The year 1995 -96 in The name of Sunil Sahu, were recovered vide Ex.P/9. Affer comple'ring ‘rhe invesfiga‘rionl charge sheaf was filed in The Cour? of Chief Judicial Magisfmfe, Rajnandgaon, whc in Turn commiffed The case To The Cour? of Sessions, Rajnandgaon and The same was received on Transfer by learned AddiTional Sessions Judge for Triai. 3) Charges under SecTions 394 and 302 of The IPC were framed againsT The appellanT who abjured his guilT. The prosecuTion in order To esTabiish charges againsT The appellam‘ examined 14 wiTnesses in ail. ThereafTer, sTaTemenT of accused under SecTion 313 of The CrPiC. was recorded in which he denied The circumsTances appearing againsT him in The prosecuTion case and sTaTed ThaT he has been falsely implicaTed in The case and was seriously beaTen by The/ police during inTerrogaTion. 4) Homicidal deaTh of GayoTribai is noT in dispuTe. Even oTherwise, from perusal of The posTmorTem reporT vide EXP/15 submiTTed by Dr. Harish Kumar Joshi (PW—9), who conducTed posTmorTem on The body of GayaTribai and found 11 exTernal injuries and opined ThaT cause of The deaTh of The deceased was Asphyxia due To ThroTTling, homicidal deaTh of GayaTribai is esTablished. 5) ' There is no eyewiTness To The incidenT. ConvicTion of The appellanT is based on recovery of The looTed arTicles on The memorandum of The accused’from The shop of Tarachand (PW-4). 6) Learned counsei for The appeHnn‘r submi‘rs Tha'r 1'he appellan‘r was arresTed affer mo year-s of fhe inciden‘r on The basis of alleged memorandum by which 238 gms of silver plofe and a nose ring weighing 100 mg is alleged To have been recovered from Tamchand (PW—4). However, in The FIR which was recorded on The some day, The descrip'i’ion of The alleged arTicles is given as one pair of silver ankleTs weighing 20 Tolas, 4 numbers of silver bangles weighing 6«7 Tolas and one golden nose ring weighing 3 masas (2.5 gms). The appellanT is connecTed wiTh The crime on The basis of sarafa regisTer vide Ex.P/7A seized from Tarachand in which The enTry daTed 19.05.1995 menTions ThaT Sunil s/o Sindhu Sahu of Anda, Durg has sold one pair of silver "aThi", six silver bangles weighing Z40 gms and a golden nose ring weighing 100mg, ToTal for a value of Rs.1336/-. The odescripTion of arTicles sold by Sunil on 19.05.1995 does noT maTch wiTh The descripTion of The alleged arTicles menTioned in The FIR. IT is furTher argued ThaT arTicles of The deceased were puT for idenTificaTion by The ExecuTive MagisTraTe before husband of The deceased. He idenTified The nose ring, buT iT was noT possible To idenTify The silver arTicles as The same were admiTTedly melTed. Even Then, in The idenTificaTion memo (EXP/5), boTh The arTicles were V correcTly idenTified by him. 7) On The oTher hand, learned counsel for The STaTe supporTed The impugned judgmenT of The Trial CourT. L" / 3) We have heard iearned counse! for 'rhe respecTive par-Ties. 9) The appellan‘r has been convic‘red éole!y on The basis of The seizure of fhe alleged arficles a1“ 'rhe insfance of ‘l'he appellon'r on his memorcneum. The oniy quesTion ‘ro be considered for disposal of This appeal is whefher 1'he accused can be convicfed only on The basis of recovery of allegedarficles which were seized from The shop of Tarachand, af‘l'er Two years of The incident 10) Learned frial Cour'f only on surmises and conjunc‘l'ures held fhe appellan‘i' guil'ry for commi‘Hing offence of murder of deceased Gaya‘rribai. 11) We have scrufinised fhe sarafa regisTer vide Ex.P/7A, FIR vide EXP/14 and fhe seizure memo vide Ex.P/9. 12) We are of The considered opinion Tha‘i' regarding nose ring which is allegedly seized a’r fhe insTance of The appellant from Tarachand, fhe prosecu‘rion has noT been able To es‘i'ablish fha‘r The nose ring seized from Tarachand P.W.4 is fhe same ring which belongs To The deceased; as The descripTion of The nose ring in The FIR was shown To be 3 masa (2.5 gms), whereas in The Sarafa regisTer of Tarachand The weighT of nose ring has been shown as 100 mg. Even oTher wise, we are of The considered opinion ThaT The enTry daTed 19.05.95 iniTially referred To only silver ornamenTs weighing 240 gms as described above and nose ring one number weighing 100 mg. are shown To be sold on 19.05.95 and Thus There is discrem The m descripfion of The ar‘ricles seized and (Jr-Tides which were allegedly loofed from The deceased on The date of incident If is no? in dispu‘re Tha‘r excepf The recovery of nose ring cf The insfonce of 1'he appellan'r on his memorandum, There is no oTher evidence on record To connecT The accused wiTh crime. Therefore in view of The facT ThaT The recovery was made afTer Two years and There was a discrepancy in The weighT of The nose ring,‘ we are of The considered opinion ThaT The courT below was noT jusTified in holding The oppeilanT guilTy for causing homicidal deaTh of deceased and benefiT of doubT was To be exTended To The appellant 13) In The resulT, The appeal succeeds and Thessame is allowed. Impugned judgmen'i' of The Trial CourT convicTing and senTencing The appellanT as menTioned above is seT aside. The appellonT is acquiTTed of The charges leveled againsT him and he is direcTed To be seT aT liber‘ry forThwiTh, if noT required To be deTained in any oTher%VVV/V/ri ,/ J/ Sd/— \ i V'K- Shrivastava Judge padma \ \