nfl :F •<».\ HIGH COXJ&T OF CHHATTISGARH. BILASPUR Criminal Aopeal No.1179/2003 APPELLANT VBI^US RESPONDENT Jaiuuna Bai, w/o Guha Singh, Aged about 40 years Sweeper, resideat of Malajkhanid, District Balaghat, MP 3tate of Chhattisgarh •^^^^-h:N!u^^> CRIMINAL APPEAL U/S 374 OF THE CODE OF CRIMLNAL PROCUDERE Shri Anurag Jha, counsel for fhe appeUant. Shri D.K. Gwabx, Cjovenunent Advocate for fhe State. Division Beach:- Hon^ble Shri T.P. Sharma SB Hoa'Me Shri R.L.Jhaawar,JJ Pe»T.P.Sharma, J. ORA1, JUDGMBNT (07.02.2011) ChaUenge in. this appeal is to fb.e judgment of conviction aad order of sentence dated 23.9.2003, passed by fhe Additional Sessions Judge Rajnandgaon (CG) in S.T.No. 172/2002, whereby and whereunder the leamed Additional Sessions Judge, after holding the appeUaat guUty for comiuission of culpable homicide amounting to luurder of one Raju, convicted fhe appeUaut under Section 302 of the IPC aad sentenced for life imprisoninent aad fine of Rs.25,000/-, in default of paynierLt of fine to further luidergo R.I. for 1 year. 2. The conviction is unpugned on the ground that without there being aay iota of evidence suf&cient for conviction of fhe appeUant, ,aS;sy .\ •^i^^ ftie leamed Additi6u.al Sessions Judge has convicted aad seutenced the appeUaat as aforciaentioned aad fhereby com.initted illegalily. 3. As per case of pjrosecution, on 27.8.2002, present appeUaat stayed in Agrasen Atifhi Grih, Rajnandgaon along wifh. one Raju. They stayed there^ for som.e days aad fhereafter, the appellaat left Agrasen Atithi Grih wifh^ut aay iatiiaation. On 2.11.2002 bad smeU came out from the room^ which was aUotted to Raju. Fiaally, it was opened aad deGoinposed dead body of Raju was found inside the room. Merg was uitmiated vide Ex. P/ 2 by Radheshyam(PW-2), Maaager of fhe Atittii Grih. Thc Investigatiitg OfBcer left for fhe scene of occurrence and after preparing Paachaaaiaa, niap was prepared vide Ex. P/3. Two steel glasses, one bottle of soft drink, one botUe on which IndoceU was wntten, dried omit was seized fi-om fhe spot vide Ex. P/4. Shirt ofthe deceased, pettieoat ofwife of fhe deceased along with sari aad blouse, ladies nmbrella, plastic chappal, one receipt ofWiUiam. S, one chit on which 6 Sulphas aad date 26.8.2002 was mentioned, one receipt of Kesri Lodge dated 27.8.2002, one receipt of Kesri Lodge for Rs.200/- were seized vide Ex. P/5. Register ofAgrasen Atifhi Grih was also seized vide Ex. P/6; sainewas given. ia Supurdnama vide Ex. P/8. Deadbodywas sent for autopsy to District Hospital, Rajnandgaon vide Ex. P/ 19, where Dr. R.R. Maadle (PW-13) conducted autopsy vide Ex. P/20. Viscera was preserved and no definite opiaion was given relating to mode ofdeath ofthe deceased. FIR was lodged vide Ex. P/21, Viscera was seized vide Ex. P/22. Present accused was identified vide Ex. P/9. Statemeiits of the witaesses were recorded under Sectioa 161 offhe Code ofCruiunal Procedure, 1973 (in short the Code). 4. After coinpletioa of uivestigation, charge sheet was filed before the Ctuef Judicial Magistrate Rajnaadgaon, who ia tuni, i^ 1;^;> y (313 B:ate sss. - coinnutted ftie case to fhe Court of Sessions, Rajnaadgaon Iroai wliere the leamed Additional Sessions Judge i-eceived the case on transfer for trial. 5. In order to prove the guilt of the accused/appeUant, prosecution examiaed as maay as 15 witaesses. Accused was examiued under Section 313 ofthe Code, ra which, she denied the circuinstauces appearuig against her, innocence and false uapUcation in criine ia quest^on was claimed. 6. After providiag opportuaity of heariug to the parties, fhe leamed Additibnal Sessions Judee convicted and sentenced the appeUan.t as aforesaid uientioned. 7. We have heard Shri Anurag Jha, learued counsel for fhe appeUaat aad Shri D.K. Gwalre, leanied Goverrunent Advocate for the State, perused ftie judgment unpugned and record of the trial Court. 8. Learaed counsel for the appeUaat vebeinenUy argued that although conviction of fhe appellant is based on circuiastantial evidence, especiaUy, oa the evideace of Radheshyam (PW-2) who stated that fhe appeUaat came to Agrasen Atifbi Grih along wifh one Raju on 27.8.2002; they stayed ia a room aud thereafter ftie appeUaat was not seen iii the Atifhi Grih; aad decoinposed dead body of Raju was found inside fhe room. on 2.11.2002. Sonie Sulphas niedicine was recovered from fhe room., which has been relied by the prosecution. He furfher subinitted that if the aforesaid evidence is considered aloiig wifh fhe fact that present appeUant came there with Raju aad subsequently, Raju was found dead then also the appellaat could not be convicted under Section 302 of fhe IPC for conunission of culpable hoinicide auiounttug to raurder of fhe deceased. Learued counsel argued fhat Sulphas, a poisonous irisecticide was found in the pocket ofthe deceased aud it appears that the deceased himself had consumed such poison u -.*" .i¥ '^'•'=^^... aad died as a result of such poisoning. In order to prove the appeQaat guilty under Section 302 of fhe IPC for causiag death by poisoning, prosecutiou is required to prove the fact fbat the deceased has died as a result of poisoniag and death was hoxuicidal iu nature. In the present case, Dr. R.R. Maadle (PW-13) who has conducted autopsy has preserved the visceia aud as per autopsy report Ex. P/20,^fae has not given auy definite opinion; prosecution has also not produced cheiaical examiaation report of viscera to prove the fact that poison was present ia fh.e viscera. In absence of such evidence, conviction aad sentence of fhe appeUaat under Section 302 offhe IPC is not sustaiuable under fhe law. 9. On fhe ofher haad, learaed counsel for the State veheiaently opposed fhese argucuents aad submitted fhat prosecution has proved its case beyond aU shadow ofdoubts. 10. In order to appreciate fhe ai^uments advaaced on behalfof the parties, we have exauaiaed the evideace adduced ou behalf of fhe prosecution. 11. As per evidenGe of Dr. R.R. Mandle (PW-13), he has couducted autopsy vide Ex. P/20 aad preserved viscera. As per report, he has not given any definite opinion relatmg to death of fhe deceased. Prosecution has not proved the viscera report or auy document to show fhat the deceased has died as a result of poisoning aad death was hoinicidal in nature. In absence of evidence relating to homicidal death of deceased, ftie findiag of coninussion. of such offence by the present appeUaat is not sustainable under the law. Onty on the ground of suspicion or the fact fhat the appeUant cauie along with Raju in the Atithi Grili aud stayed there for few days is not sufScient for drawiag au uiference tliat fhe death of fhe deceased is hoiaicidal ia natiu-e aad the appellant has caused such*rieafh. While convicting aad sentenciag ^^ '*"; fhe appeUaat, court below has not considered fhe most niaterial aspect of fhe case fhat prosecutioa has not proved hoinicidal death of the deceased, therefore, conviction of the appeUant under Section 302 of fhe IPC would not be sustauiable under law and fhereby conunitted illegality. ;»iM:'!'SSfe3SB>- 12. For the foregoing reasons, the appeal deserved to be allowed •'•'i. aad it is hereby aUowed. Conviction aad sentence ofthe appeUant -^Jamuna Bai under Sectioit 302 ofthe IPC is hereby set aside. She be set at Uberty at once, ifnot required ia. auy ofher case. inita. Sd./- ,P. Sharma Judge Sd/- R.L. Jhanwar Judge