.<!•>-"». /y^ss ^-v^f. '•BSS^^ "y*"; ^^ ^ HIGH COURT OFCHHATriSGARH : fflLASPUR D.B: HON'BLESHRI T.P.SHARMAAND HON'BLESHRIR.L.JHANWAB.JJ. APPELLANT INJAIL Cr.ADpeal No.200 of2005 V: J^i RESPONDENT Lakshman, s/o Chudi Ram Usendi, aged about 48-49 years, occupation - Agriculture, resident of village Aaturbeda, police station Ravghat, District North Bastar, Kanker (C.G.) VERSUS State of C.G. CRIMINAL APPEAL UNDERSECTION 374 (21 THE CRIMINAL PROCEDURECODE Present: Smt. Renu Kochar, counsel fortheappellant. Shri S.R.J. Jaiswal, P.L. for ttie State. illtl ORALJUDGMENT (Passedon 22.02.2011) Chatlenge in this appeal is to the judgment of conviction and order of sentence dated 28thFebruary, 2005 passed by the 1st Additionai Sessions Judge, Kanker, Dist. North Bastar (C.G.) in Sessions Trial No. 126/2004 whereby and whereunderafter holding the appellaht guilty for the commission of cutpable homicide amounting to murder ofPrem Singh, the Court below convicted the appellant under Section 302 of the I.P.C. .^ - . - 1- -. -_ —-. .. and sentenced him to life imprisonment with fine of Rs.500/- and in default to undergo further R.l. for one month. 2. Conviction of the appellant is impugned on the ground that without any iota of evidence,ttie Court below convicted and sentenced the appellant and thereby committed illegality. .^^ss"^ ?li?ff'>al: '^ ';&:;^M Bil) B."t -.Uuifate,. \ 3. As per prosecution case, on 28.12.2003, presentappellant and the deceased Prem Singh were coming towards their village after eonsuming intoxicating material. They were under intoxication and even they were not in a position to walk. They were also quarrelling and in that process appellant pushed Prem Singh in the river and pressed his body in the water of river. Appellant also pressed neck ofthe deceased and caused hte instantaneous death. IrjEident was witnessed by P.W.3 Dev Singh and f-'i . . P.W.4 Mangtu; On second day of incklent, merg was recorded vide Ex.P.9. Investigating Officer left for scene of occurrence and after summoning witnesses vide Ex.P.10, inquest over the dead body was prepared vide Ex.P.11. Dead body was sent for autopsy to Primary Health Center, Tadoke vide Ex.P.5. P.W.7 Dr. U.N.Dhvan conducted autopsy andopined Uiat cause of deatti was Asphyxia as result of fall on the water and death was accidental in nature. He also noticed scratch over knee and chest. After enquiry of merg, F.I.R. was registered vide Ex.P.13. 4. Stetements of witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). During the course of investigation, statement of Mangturam was recorded under Section 164 of the Code vide Ex.P.2. Finally, charge sheet was filed before the Court of Judicial Magistrate First Class, Bhanupratappur, who in turn committed the caseto leamed Sessiohs Judge, Jagdalpur. The leamed Add'rttonal Sessions Judge received the caseon transfer for trial. 5. In order to prove the guitt 6f the apf»llarrt,prosecution examined as many as 08 witnesses. Accused appellant was also examined under Section313 ofthe Code W(()ere he denied the cireumstances appearing against him and pleaded his innocenceand false implication in crime in question. 6. After affordirig opportunity of -hearing to the parties, teamed Additional Sessions Judge convicted and sentenced the appellant as aforemenfioned. ,;^.te'^^ ~aKwe "^..^ %f S :.l;:il •!';•!%:^'EK=-n;.T \ 7. We have heard Smt. Renu Kochar, leamed counsel for the appellant Shri S.R.J.Jaiswal, P.L. for the State and perused the judgment impugnedand record ofthe Court below. 8. Smt. RenuKochar, leamedcounsel for the appellantsubmits that convicUon of theappellant is based on the evidence of P.W.3 DevSingh and P.W.4 Mangturan;. As per statement recorded under Section 161 of the Code, the pres^nt appellant pushed the deceased in the river, suppressed and twisted the neck of the deceasedand thereby caused homicidal death but other witnesses have not corroborated the statement recorded under Section 161 of ttie Code during the course of svidence in Court. Their evidence has been relied on to the extent that deceased was last seen alive in the company of the appellantand thereafter he was found dead. As per evidence of Doctor, the death of Prem Singh was accidental in nature. On a query, he has opined that ff the mouth of the deceased was pressed in the water for considerable time, then he may die as a result of Asphyxia and thatwould be homicidal in nature like in the present case. This shows that prosecution has not collected evidence of steriing quality. Evidence adduced on behalf of prosecution is insufficiency and on the basis Of aforesaid insufficiency evidence, conviction ofthe appellant is notsustainable under taw. 9. On ie other hand, Shri S.R.J. Jaiswal, leamed counsel for the State opposes theappeal and submits ttiat evidence of P.W.3 Dev Singh and P.W.4 Mangturam is sufRcient for drawing definite conclusion that present appellant has caused homicidat death ofthe deceased. 10. In order to appreciate the arguments advanced on behalf of the parties, we have e^Eamined the evidence adduced on behalf of prpsecution. As per evidence of P.W.7 Dr. U. N. Diwan, fcause of death was as a resuttof Asphyxia and death was accidental in nature but he has also opined that W a person was pushed down in the water and his mouth was pressed forconsiderabletime, then he may die and death would be homicidal in natiire.As per evidence of P.W.3 Dev Singh and P.W.4 Mangturam, appeltant and deceased were coming towards their village. They have consumed liquor and were under effect <rf intoxication. Th^y ti*Es?!'i% a ^(p 4 \ were not in a position to walk properiy and were quarrelting. Evidence of these witnesses revealed that the deceased was seen alive last time in the company of appellant. Thereafter, he was found dead. Merg was recorded at the instance of Amar Singh P.W.8. Tn the present case, appellant has not offered any explanation relating to cause of death of deceased butwas present at the time of recording of merg in which tt has been mentioned that deceasfed has died as a result of fall on the water. In •;'( . '.. . . ./...' . present case, this is sufficient explanation onfaehalfoftheappellant. 11. In ordertoconvict the appellant under Section 302 of the I.P.C.that too for such ofFence, prosecution is under obligation to adduce sufficient evidence of sterling quality to exclude the possibilHy of suieidal death, accidental death and homicidal death by other person. In the present case, evidence of.P.W.3 Dev Singh and P.W.4 Mangturam is onfy suffident to the extent that appellant was commg to his village atong with deceased and thereafter dead body of deceased was fbund but the same is not sufficient for drawing an inference that appellant haspushed dbwn the deceased in thewater or has pressed his neck or has twisted his neck and no injury of pressing or twisting has been noticed by the autopsy Doctor. In the absence of aforesafdevidence, the evidence of P.W.3 Dev Singh and P.W.4 MangtuFam coupled with autopsy, the medical evidence is not sufficient for drawing any definiteconclusion. 12. While convicting the appellant under Section 302 of the I.P.C., the Court below has not considered quality and insufficient ofevidence and thereby had committed grave illegality. 13. For the foregoing reasons, the appeal deserves to be and is hereby aUcwed. Conviction and seHtence of the apF»ellantunder Section 302 of the I.P.C. is hereby set aside. He be setat liberty at once, if not required in anyother case. . —- ] RJ,.Jhanwar \ Judge T^.Sharm« judge