1‘‘1 N HIGH COURT OF CHHATTISGARH . BILASPUR D.B: Hon’ble Shri Rajeev Gupta, C.J., & Hon’ble Shri Sunii Kumar Sinha’, J. Criminal AQQeal No. 148 of 2004 Maandwi Hando Vs. The State of Chhattisgarh x. JUDGMENT For consideration Sdl- ”t: 1 SunilKumarSinha a, ‘ M HON’BLE SHRI JUSTICE RAJEEV GUPTA 3%:LW%“ Sd/- ‘ CHIEF JUSTICE I z Post for Judgment 15/09/2008 ,m «A» ,/ Sd/. V ‘ . < . SUNIL KUMAR Judge 7 SINHA ' l 2 Criminal Aggeal No. 148 of 2004 g ‘ both consumed Iiquor in the house of deceased- Kuhrami Kosa. Thereafter, the appellant returned back to his house and when he was sleeping in the house, the deceased came there and on account of some petty quarrel, the appellant took out a crowbar from his house and assaulted the deceased on his head. The deceased received many serious injuries and succumbed to those injuries. The incident was witnessed by the wife of the appellant, Maandwi Budhri (PW-2). She rushed to the house of the deceasedand told the wife of the deceased, Kuhrami ' Hadme (PW—6), about the incident. Kuhrami Hadme went to the houSe of elder brother of the deceased namely— Kuhrami Aaytu (PW-1) and narrated the story to him. Kuhrami Aaytu went to the house of the appellant and saw the dead body in the Badi of his house. He informed the incident to Kuhrami Aaytu (PW-3, Sarpanch of the village) and thereafter, a Panchayat was convened and on 14.5.2000, the First Information Report (Ex.- P/1) was lodged by Kuhrami Aaytu (PW-1). (3) Sub-Inspector, H.L. Patel (PW-7) reached to the scene of ’1 occurrence, gave notice (Ex.-P/3) to the Panchas and prepared inquest (EXP/4) on the body of the deceased. The dead body was sent for postmortem to P.H.C., Katekalyan. The postmortem examination was conducted by Dr. A.D. Bara (PW-5), who noticed the following injuries on the body of the deceased: i): lncised wound between left eye & ear, size 1 1/2 x 1/2 x 1 inch: ii) lncised wound on the side of left eye, size 1/2 x 1 x 3 inch, it was a penetrating wound piercing in side & iii) lncised wound on the left ear, size 1/2 x1 x 3 inch. The wound had damage the ear membrane. On internal examination, he found that the membrane of left ear was ruptured. The brain was damage and there was huge profusion of ,blood in brain. The Autopsy Surgeon opined that the cause of death was damage and profuse hemorrhage in brain and it was homicidal in nature. 3 (4) In further investigation, site plan was prepared under Ex.—P/13 and the blood stains soil, piain soil and blood stained crowbar were seized from the place of occurrence under Ex.—P/5. he seized articles were sent for their chemical examination o rensic Scence Laboratory, Raipur under Ex.P/15 and a report, EXP/16, was obtained. According to the F.S.L. report blood stains were ound on the soil and the crowbar. (5) After completion of usual investigation, the‘ charge-sheet was file in the Court of concerned Magistrate, from where the matter ws committed to te Court of Sessions Judge, Bastar at Jagdalpur, who conducted the trial and convicted and sentenced the appellant as aforementioned. Though the sole eye witness of the case, Maandwi Budhri (PW—2), did nt support the case o prosecution but the learned essions Judge convicted the appellant on the ground that the dead body was found in the Badi of hi ouse and the blood stains were found on the crowbar seized from the place of occurrence. The Court further considered that the conduct of the appellant was also relevant as he did not turn up in village Panchayat and even he id (6) d not report the matter to the police when the dead body was found in the Badi of his house. (7 Leared counsel for the appellant argued that the conviction has been recorded on conjectures and surmises. The sole eye witness i.e. Maandwi udhri (P-2) has turned hostile and Kuhmari Hame (PW—6) has posed herself as the eye witness, whereas, she was not an eye witness and even fter recoring a finding to this effect in Para-16 of the impugned judgment, the Sessions Court has convicted the appellant. The dead body was found at an open place, which was accessible to all, therefore, merely on account of recovery of the dead body from the Badi of the appellant, he cannot be held liable for punishment u/s 302 l.P.C. Criminal Appeal No. 148 of 2004 T t Fo i f d a h o f S s h ) n B W d a d Criminal Appeal No. 148 of 2004 (8) On the other hand, learned counsel for the State opposed these arguments and supported the judgment passed by the Sessions Court. (9) We have heard the learned counsel for the parties at Iength and have also perused the records of the sessions case. (10) Admittediy, sole eye witness of the incident namely Maandwi Budhri (PW-2) has compietely turned hostile. She has completely denied that the deceased was assaulted by the appellant. Kuhrami Hadme (PW—6) deposed “That she had seen the occurrence in the house of the appellant. According to, her, the appellant took out a crowbar from his house and assaulted on the head of her husband. He gave two assaults. She deposed that she had tried to intervene but the appellant threatened her also. On such assault, her husband fell down and died instantaneously. She went and informed the incident to the elder brother of the deceased namely- Kuhrami Aaytu (PW-1)". These facts are not there in her 161 statement (Ex.P/11). According to that statement, in fact, she was informed by the wife of the appellant, on which, she gave further information to the brother of the deceased. She was declared hostile by prosecution and when she was faced with her such statement, she denied that she gave such statement to the police and vehemently claimed that she had seen the occurrence. The learned trial Judge has disbelieved the factum of witnessing the occurrence by PW—6, Kuhrami Hadme. (11) PW-3, Kuhrami Aaytu, Sarpanch of the village, deposed that he was informed by PW-1- Kuhrami Aaytu, that the dead body of the deceased is lying in the house of appellant Hando. He went to the house of Hando and saw that the dead body of the deceased was lying in the court-yard. He has very specifically deposed that he could not receive information as to who had murdered the deceased. He deposed that on the next day the Panchayat was convened but the appellant did not turn up to Panchayat as he had gone to the police station. ln clear words, he deposed that he does not know as to who murdered the deceased. PW-1- Kuhrami Aaytu, brother of 5 Criminal Appeal No. 148 of 2004 the deceased said that Kuhrami Hadme (PW-6) had informed him that Hando has murdered the deceased, then, he went to the house of the appellant and saw the dead body. According to prosecution case, Kuhrami Hadme, wife of the deceased was informed by eye witness- Maandwi Budhri (PW-2) and then, this witness Kuhrami Aaytu (PW-1) was informed, but, since Maandwi Budhri (PW-2) has completely hostile, therefore, the evidence of these 2 witnesses i.e. Kuhrami Hadme (PW-6), wife of the deceased and Kuhrami Aaytu (PW-1), brother of the deceased, are of no use to\the prosecution so far as they relate to the disclosure of name of author of the crime on the basis of information given by eye witness. Therefore, the evidence which remains against the appellant is that the dead body was found in his Badi and no explanation was given by him about it and that he did not turn up in village Panchayat. (12) lf we look into the Map (Ex.-P/13) prepared by the Investigating OfFIcer, it would appear that the dead body of the deceased was found in the Badi portion of the house. It appears to be an open place, accessible to all and in the facts and circumstance of the case, a possibility of planting the dead body or that taking place of fight and assault by any third person than the appellant cannot be fully ruled out in this case. It is not a case in which the crime has been committed in the privacy of the house by causing murder of any inmate of the house who is bound to remain present in the house. The deceased was not an inmate of the house and his presence in the house neither was essential nor presumed, therefore, if his dead body was found in the Badi of the house of the appellant which was accessible to all, that by itself would not sufficient to hold the appellant guilty'of offence. ln our considered opinion, in absence of any other clinching, cogent and reliable evidence regarding commission of crime by the appellant, in the facts and circumstances of the case, he cannot be held responsible on this circumstance alone. (13) As far as the seizure of the crowbar and presence of blood on it is concerned, that does not connect the appellant with the \ 6 G f Criminal Appeal No. 148 of 2004 commission of crime. The crowbar was seized from the place of occurrence and was not seized on the instance of the appeiiant. Even it does not come that the said article was identified to be belonging to the appellant. The learned Sessions Judge has wrongly treated this circumstance as incriminating against the appellant. (14) As far as conduct of the appellant about not coming in the village Panchayat is concerned, it comes in the evidence of PW—1 that the appellant had gone to the police station, though he adds that after commission of the crime. Even PW-3, Sarpanch, has said that the appellant had gone to the police station. It does not appear on the record that whether he has gone to the police station to lodge a r report or to surrender himself to the police on account of he being an author of crime, but,his conduct of not coming in the village Panchayat is self explanatory by evidence of these witnesses that on account of going to the police station he did not attend the Panchayat. Therefore, reliance placed by the Sessions Court on such conduct of the appellant and taking it to be incriminating does not appear to be convincing in the present facts and circumstances of the case. (15) For the foregoing discussions, we are of the opinion that the learned Sessions Judge erred in law in holding the appellant guilty of commission of murderof deceased Kuhrami Kosa. There are no clinching, cogent and reliable evidence to hold the appellant guilty of the aforesaid offence. (16) Therefore, the appeal filed by the appellant is allowed. The Z conviction and sentence awarded to the appellant are set aside. He is acquitted of the charges framed against him. It is stated that the appellant is in jail since 15.5.2000. He be set at liberty, forthwith, if vatti not required in any other case. SW- unii Kum - 3, CHIEF JUSTICE ‘l Judgael' Sinha ‘3... .x