’\ \ WW,W@W @ mm 1:1 200 3mm (W) ‘ 1 ; - 1 Presen'r Mr- V'Jay K Dzshmukh Advocn‘l'e Ifor fhe appellanf r Mr D K Gwalre Addrhonal Public Prosecutor for ‘rhe Sfnfe. ORAL JUD5MEN‘T U'"F¢bruary,2008) P¢r Dhinndru Mishra J Thus appeal is directed against The judgmem' of convic‘fion and order of semence dafed-9’“ Juiy, 2001 passed by learned 2’” Addifiona! Ses'sions Judge (F T C) Bemefra District Durg m Sessions Trlal No 421/95 whereby learned Addmonul Sessions Judge has conmc'red The oppellanf under Section 302 of The IPC and senTuenced him WITh life Imprisonment and fin of Rs.1,000/-, in d‘efaulT of paymenT of fine To furTherundergo RI. ‘for six I monThs. e 'MWW WWW r mmm J mm §§mn ‘- DIVISION BENCH: HON'$LEMRLD 1 ; - 1 > ' HON'BLE Mk. T.P - L 1 ; ,C§IMINAL APPEAL $.611/2001 ‘ i ‘ ‘ V APPELLANT » , Purushofmm, S/o Ghimji Verma,;aged abou? I (InJaiI) - 50 year-s, Occupnfion-Shopkeeper, R/o WHage Bniz'ee, P.S. Bemeh'u, gDisT. burg ‘ (C.G,). ’ > ' r Vs RESPONDENT The 5mm of ChhqHisgarh.’ mmm am‘mm -zJ Case of the prosecution, in brief, is That on The information of Parasram, brother of fhe appellant, Tho? Dhannibni has se‘r herself on fire, she is nof in The home, on search‘burn‘l' pieces of clothes were found in the cou/rtyard and smell bf kerosene was emanating from the well, merg intimation of Ex.P-3 was registered in the Police Station Bemetra. During investigation, dead body of Dh over the dead body was prepare vide EXP-2 and deadibody was sent for 'Bemetra' where Dr. P.K. Bqjpai (PW-8) conducted postmortem and gave is report of Ex.P-6 in which'he opined the cause of death as asphyxia due t strangulation. Thereafter, offence under Section 302 of IPC was registe against the appellant. After completing investi on, charge sheet was filed against the g i ‘ appellant herein in the Court of udicial Magistrate 1“ Class, Bemetra, who ned Sessions Judge, Durg‘and the same was received by learned Additio al Sessions Judge on transfer for trial. During trial, the prosecution e amined 12 witnesses in all. Thereafter, ded inwhich he denied the evidence ution case and pleaded innocence and false implication. However, lear Additional Sessions Judge after hearing arguments of learned counsel for respective parties, convicted & sentenced the appellant, as aforementioned. bai was taken out from the well, inquest an autopsy to Government Hospita in turn committed the case to l statement of appellant was appearing against him in the p n i , r r r c r r WW,W,W W m , W 200 an?“ vm (W) m m WEE Wmm 3mWm W §a‘m W iffg'z? mm izK-P The Trial court while con idering wheTher The dea'rh of Dhmnibm‘ was homicidal in nature considered 1'he evidenceof Dr. P.K. Bajpai (PW~8) and «L postmorfem report of Ex.P-6 i which The doctors performing autopsy have recorded thus: I “Conjunctiva and face w congested. Tongue was inside the mouth. Nails cyanosed. Rigor mo is passing off on limbs. There are pieces of r burnt ciothes having ke sene like smeii present on body. Blood‘mixed frothwas present aroun nostrii which not increases on colnpression of chest. Superficial rn injuries over legs (except thighs at genitals). Skin of back, ront of chest and anterior aspect of neck and both arms are peel off. Washer man appearance on both palms is present. Area ben skin at burnt area is white in colour; There l is no line of redness, se crating healthy tissues, there is no blister, there is no biack spot o r burnt area and nostrils and therefore, the use burns are postmortem in ure. Ante-mortem injuries present over the person of deceased are: (1) abrasion on chin of size‘1‘x%"; (2) contusion over ant aspect of middle of neck of size 4 x %", on dissection of above injury neck muscle shown sign of ante—mortem violence i.e. extra blister of blood in neck muscle and on further dissection larynx & trachea contains blood mixed'froth & trachea is red in colour." & ?i .mzrw, Wan—«3,W Wm m; 200 WWW (W) mim’hwméf§1z‘érm mmm , $3ifanm ’R/ and on 'rhe basis o'f above obseujvm'ion, The docfor has opined Thu? since fhe neck muscie shown sign of mk‘e mot-tam injuries, face is congested and in‘ternal organs shows sign 01‘ asphyxia, Therefore, cause of death is asphyxia due to sfranguiai'ion ind Time elapsed since deafh is 12-30 hours approximafeiy. The ‘rrial court on The basis of above finding recorded in fhe postmorfem report, has held that fhere is no sympfom That deceased Dhannibai; died due To drown‘ g and furTher relying upon The following circumstances has convicTed T appellanT under SecTion 302 of IPC. 1. AppellonT resided wTh The deceased and Two children in The ' house. 2. Dhannibai died homic dal deaTh and her body was found in The well siTuaTed in The house of accused. 3. AppellanT has Taken defence Through The evidence of Budhyarln Bai (PW—11) ThaT nnibai herself poured kerosene, seT her ablaze and Thereafl' r comm'rTTed suicide by jumping inTo The well, which is ToTally unbel evable. 4. AT The Time of inci enT The appellanT was presenT in Thehouse, however, he spread false rumour ThaT he had gone To call Mausa of deceased; and ‘y, _ 5. AppellanT was presenT in The house aT The Time of incidenT and Therefore he is responsible for The offence. a l l WW,-WW,W 'auaarvm (W) WWW ‘5’” Learned caunsel for The fhe Trial court is based on has been drawn by ignoring un of ihe circumsfonces relied up' evidence available on record. X 'MWW ,mmm mm WW . *mm appellant submits Tha'r findings recorded by ecture and wrmises. The above inference atted evidence adduced during trial. None 'n by the prosecution is established from the \ The irial courf has heavily relied upon The posfmorfem report of Dr. RIC Bqjpai (PW-8) who has based his finding only on am'e mor‘rem injuries p E/ €rd *«3‘ over the neck of the deceased ignoring the possibility Thajr The deceased ould sustained ‘rhose injuries while jumping in The well. There is un-rebu‘ri'e evidence in i'he shape of 'prosecu‘rio‘n witness Budhyarin Bai (PW-11) iha'i sh children and at that time the appellant was not present in "his house sin e last one hour. Her version is als‘o duly corroborated from the statem who reached to the place of in has categorically deposed appellant namely Budhyarin lane in a burnt condition. He further submits that trial court only'on the basis of absence of line of re‘ ess under the skin and black soot over burnt areas of nostrils has arrived saw the deceased coming out from her home in burn‘i' condition towards he nt of Kedar (PW-9), Mausa of the deceased, iderrt on being called bycthe appellant and he on being asked the neighbour-er of the informed that Dhannibai ran towards the the conclusion that cause of death was not due to burn injuries. However, the doctor has arrived at the conclusion that ’ cause of death was strangu l W m .0”: wr- 20 ion but no ligature mark has been described. c — r t 0 ‘ j ’ b t i WW,W§,W mm ,. 1:1 200 3mm (W) WWW WWW mwm WWm'iimm $WW‘ ’é.’ He further submits Thaf dead body was sunk deep im'o The we" andv‘rhe same was fetched ou'l' with 1'he p of iron-hooks. Referring 1’0 Page No.611 of Dr. Modi's jurisprudence 23"“ edifion if was argued ‘rim normally, an un onscious person sinks and goes down To fhe bottom of wafer unless There i some obstruction in between or there is a strong upward current in the water and the body comes up owing to putrefaction and formation of ases sooner or later. It was argued that had it been the case of throttli g and thereafter setting the dead body in fire and throwmg the burnt dea body inside the well the body should have floated on the surface of the t, which had water up to 4 feet below ground level. Fact that the bo y was found in the bottom of well clearly indicates that the deceased j mped into the well after setting herself ablaze and died inside the ell. It was further argued that during investigation diatom test was conducted to ascertain that the cause of death was not drowning and opin on of the doctor that deceased died due to strangulation has been accepte On the other hand, lear‘ ed counsel for the State supporting the impugned judgment argued th it is notcin dispute that the appellant and the deceased were residing tog ther with their children in the same house v According tozthe opinion given i the postmortem report by the doctor, the cause of death was strangul / and the burn injuries present over the person of the deceased were p stmortem in nature. Version of Budhyarin I i n d ati ' @ WW,W,W mm F‘L 200 minim (W) mm§ai§ Hm WWW / i WMikétm ‘ $€5imm M7/ Bai (PW-11).is belied from The p :stmor‘rem report From 'rhe sta‘remem of Kedur (PW~9) i‘I' is clear That The appeIlanT has Tried To cre'afe alibi. However, Kedor (PW-9) has cafegorically stated fhaf fhe appellam' was married to The deceased 10-15 years before her dea1'h. After marriage Dhannibai used ‘ro complain Tha1l appellant his brother and his brofher’s wife used to quarrel with her on the ground that she does not work. She had left The appeiian‘r's house wem' 'ro her parental home at \fiilage Semariya where she resided for -4 years. Thus, from the version bf this witness 'rt is clear that the app' llant a the deceased did not have cordial relationship and the appellant ha motive to commit murder of deceased. We have heard learned co nsel for the parties. We have perused‘the record as also the impugned judg ent. ' We have already detailed the findings recorded by Dr. P.K. Bajpai (PW—8) in the postmortem rep ‘as also the circumstances on the basis of which the triai court has he that Dhannibai died homicidal death. However, the trial court on the b is of reply given by the doctor (PW—8) to the query of EXP-7 of the inve igating officer in which it is mentioned that cause of death is strangul ion and the same was‘homicida‘l in nature has held that the deceased died omicidal death. admitted in Para 6 of his cross- examination that whenever a p rson is strangulated, the possibility of tongue coming out is there. Howe r, in the instant case, he did not observe I Dr. P.K. Bajpai (PW-8) d o l s 3E W, ~Wr§3W W m W 200 3“?“ 113$ (W) 'm anW w Wm mWm ~§’a ’ mjazih a;m am atm rmm x, any impression of fingers over The neck and 'rongue of fhe detensed was inside The mouTh. He has nlsc admii‘red in fhe cross-examinm'ion fhat ante ,i “morfem injuries described by him in The postmortem repor'r could be caused by fall also. The possibiliTy oi‘dea‘i'h due 1'0 drowning has been ruled ouf on yrhe ground ‘ih‘ot no wafer was found in stomach, iungs, trachea 6i larynx. Thus, considering over ll evidence of Dr. P.l(. Bajpai (PW-8) and the fact that dead body of the eased was found in‘the bottom of well and considering that opinion given i Dr Modl and also considering the fact that diatom test has not been pe armed m the instant case there is substance in the arguments advanced b learned counsel for the appellant that in the present set of facts positi finding that the deceased died jdue to strangulation could not be rded particularly, in View of the evidence of Budhyarin Bai (PW-11) and Ke ar (PW-9) Budhyarin Bai (PW-11 has categorically stated that she saw the deceased coming out of her h me in burnt condition. She has been exammed as prosecution witness she h not been declared hostile and her version is unchallenged and version of this witness finds corroboration from the version of Kedar (PW-9) who as stated that he reached With the appellant to his house .and on enqui Budhyarin Bai told him the entire story. Budhyarin Bai (PW-11) has al stated that appellant had gone out one hour before the deceased came in the burnt condition and her version is also corroborated from the versi of Kedar who has stated that appellant was mm,m,1%lwgt IW m V. W .200 'anam‘m (W) 'mmm - ammm mmm' WW wW . $W3né¥l s—gr— it; *he incident This wifness has mt been present‘in his house‘jusf bef cross'—examin’éd by the prosec ion. Therefore, in View of The s‘mremm‘r of above two, wi‘rnesses who ha been examined as prosecution witnesses, I. finding of the fridl courf Th'rhe appelian‘r has seT a fake defence by a examining: Budhyarin Bai is com ary To The mn‘i'erini available on record. For- fhe foregomg re ns, 1'he Circumstances The? deceased died ‘ i , 'homicidal death her dead bod was found inside the we“ The appellant has i L ' faken a defence fhrough Bud L rm Bai who is a prosecuhon wrrness and ,‘rhat the appellant was presen'i in the home at the time of incident and he r, ‘ spread a canard that he had one to call Mausa of the deceased are not If ' born out from the ewdence ilable on record and the prosecution has not ‘ been able to- establish the af resaid circumstances beyond all reasonable doubts. w‘As’ suchf-fbonviction of he appellant under Section 302 of IPC and [I ‘ senten‘ceimp’osed' under that s ion cannot be sistained. f \ Nf l In the result, the app i filed by the appellant succeeds and the same is allowed.’Conviction of appellant Purshott’mn under Section 302 of IPC and sentence imposed un r that section are hereby set aside. He is _ acquitted bfthat charge and be set at liberty forthwith, if not rewired ; ‘ in any other case. Sdl- K ‘ Dhirendra Mishrav‘ . // \\l T. P. Sharma Judge ’ " "