ii^-51 . <v!e/ /^ sse'w^ HIGH COURT OF CHHAmSGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA & HON'BLE MR. R.L. JHANWAR. JJ. APPBLLANT aMMINAJ, APPBAL No. S08/2001 Fool Sai Kindo. VERSUS RESPONDENT State of Chliattisgarh. JUDGEMENT FOR CONSIDERATION T.P. Sharma Judge Hon'ble Mr. R.L. JHANWAR J. .,& Sd/- R.L. Jhanwar Judge 2^/02/2010 Post for Judgment on: 2__/02/2010 Sd/- JUOQK"'""- 02/02/2010 iw^ss-..:. ' .atiSii ^ lL^€®s 1 sww }. y ^^^ "'"s.iaass 3 {'... HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM; HON'BLB MR. T.P. SHARMA & HON'BLE MR. R.L. JHANWAR. JJ. Criminal Appeal No. 508/2(X)1 APPELLANT VERSUS RESPONDENT Fool Sai Ktndo, S/o Rati Ram Kindo, Aged 27 years, R/o vil]age Madguri, Ambatoli, Thana- Kusmi, District- Sui^uja (C.G.) State of Chtiattisgarh fhrough Station Inchai^e, Thana- Kusmi, District - Surguja (C.G.) CRIMmAL APPBAL UNDBR SBCTION 374 OF THE CODB_ OF CRIBUNAL PROCEDURE. Present: - Shri Abhay Tiwari, Advocate for the appellant. Shri Rajendra Tripathi, P.L. for the State/respondent. JUDGEMENT (Passed on 02./02/2010] The following iudgment ofthe Court was passed by T.P, SbaxTO.SL, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 19/05/2001 passed by Sessions Judge Siirguja (Ambikapi-ir) in Sessions Trial No. 311/98 whereby and where under after holding fhe appeUant guilty for the commission of culpable homicide amounting to murder of his wife Meny Kresencia convicted fhe appeUant under Section ^ 302 of the Indian Penal Code and sentenced unprisonment for Ufe. The judgment is impugned on fhe ground fhat wifhout any credible and cUnchiiig evidence Sessions Judge has convicted and sentenced the appellant aforementioned and thereby committed an Ulegalit\7. Case of fhe prosecutlon in brief is fhat deceased Merry Kresencia wtfe of the appellant was residing at vUlage Madguri, Ambatoli District Surguja. AppeUant was working at Gwalior. Between 3-4/3/98 appeUant came from Gwalior to MadgLiri,Ambatoli District Surguja. He Stayed in his house along with deceased and on 7/3/98 appellant along wifh deceased proceeded for Gwalior. Dead body of unknown person was found near viUage Kattma Dumardand under the bridge. Marg was recorded vide Ex. P-6 by Police Station Kusmi. Investigating Officer left for scene of occurrence. After summonmg the witnesses Vide Ex. P-4, mquest over the dead body was prepared vide Ex. P-1. Durin^ course of marg mquiry dead body was identified as a dead body of deceased Merry Kresencia. One trouser was also found near fhe dead body. Trouser was seized from the spot vide Ex. P-2. Plain and blood stained soU, one earrings and broken piece of bangle was seized from the spot vide Ex. P-3. -'"?>-, 4. Dead body was identified by fhe persons as a dead body of Merry Kresencia vide Ex. P-5. Photographs of fhe dead body was .taken vide Exs. P-13, P-13A, P-13B, P- 13C. One photograph of Merry Kresencia was also inquest vide Ex. P-14. Photographs of spot and dead body was also taken vide Exs. P-17, P-18, P-18A, P- 18B, P-19, P-19A. The photographs of accused was obtained vide Exs. P-20 & P-21. Dead body was sent for autopsy to Piimary Healfh Center, Kusmi Vide Ex. P- 23. Autopsy was conducted by P-11 Dr. T. Sai vide Ex. P-24 and found following injuries:- (1) One lacerated wound of 5 x 3 c.m. x bone deep over left side of the forehead. (2) One incised woiind of 2 x 1 c.m. near first injur}' (3) One incised woiind of 3 x 1 c.m. over frontal re^on (4) One incised wound of 2x1 c.m. over pinna of left ear (5) One lacerated wound over left cheek of 3 x 2 c.m. (6) One incised wound pver the middle part of the neck of4xlc.m. x up to deep trachea (7) One incised wound of 2 x 1 e.m. over right side ofthe neck. (8) One incised wound of 3 x 1 c.m. near injury No. 7 (9) One incised woiind of right side of abdomen of 2 x 1 c.m. (10) Fracture of left frontal bone was found, brain membrane was ruptiired and laceration was found in the brain. MaxiUa was found fractiired. Cause ofde'afh --^ ^ '^•"- v .sv .^•?f^&. was coma and hemorrhage due to injury over the head and neck. Death was homlcidal m. nature. 5. Brother of deceased FUmohan made complaint to pollce vide Ex. P-6 (Court has marked marg intimation also as Ex. P-6) relating to murder or inissing of his sister. Spot map was prepared vide Ex. P-26. One Sari, Petticoat and soU was also recovered from the spot on 19/6/98 vide Ex. P-29. Sari and Petticoat was identtfled by fhe persons as a cloths of deceased vide Ex. P-31. PW3 FUmohan brofher of fhe deceased inquired about fhe appellant and deceased then he came to knew that appeUant in stead of going to Gwalior has gone to the house of his sister where he told that deceased has gone to fhe house of his brother at Bada but deceased never reached Bada- On 4/8/98 accused was taken into custody. He made disclosure statement of kiiife; Sari & Petticoat vlde Ex. P-7. Accused produced knife and it was recovered vide Ex. P-8. Kntfe was examined by doctor. Seized articles were sent for cheiaical exaniination vide Ex. P-11. Presence of blood over cloths of the deceased and knife was conflrmed vide Ex. P-12. 6. Statement of the witnesses were recorded under Section 161 ofthe Code ofCriminal Procedure, 1973 (in short the Code'). After couipletion of the uivestigation charge sheet was filed before ttie Judicial Magistrate First Class, Ambikapur who in tum committed the case to the Court of Sessions, Ambikapur. Leamed Sessions Judge has received fhe case on transfer for trial. 7. In order to prove fhe guilt of the appeUant/accused prosecution examined as well as 13 witnesses. Accused was exammed under Section 313 of fhe Code where he denled the circumstances appearing against him., innocency and false implication is clauned. 8. After affording an opportunity of hearing to fhe parties leamed Sessions Judge convicted and sentenced the appeUant aforementioned. 9. Leamed coiuisel for the parties are heard. Judgment tmpugned and record of Court below perused. 10. Leamed counsel for the appellant vehemently argued fhat convictlon is based on clrcumstantlal evidence matnly of last seen but witnesses of last seen have not been examined by fhe prosecution to unfold fhe shs-y oiily on the basis of assiimption appeUant was not present in the village Madguri where fhe deceased died. Appellaiit cannot be convicted for the comimssion of murder of his wife. 11. On fhe ofher hand, leamed coiinsel for tfae respondent/State opposed (he appeal and submits that convlction 1s based on circumstantial evidence and '& JJ 6 •"^ prosecution has proved the necessary chatn of circumstances to connect the appeUant in crime m question. 12. In the present case homicidal death as a result of ante- mortem tnjury of fhe deceased has not been substantially disputed on the other hand, also established by the evidence of PWll Dr. T. Sai and autopsy report Ex. P-24 which reveal that fatal injury was found over fhe neck and head tncluding fracture of frontal bone and injury over trachea sufficient for death of the deceased and death was homicidal in nature. 13. As regard the complicity of the appellant in crime in question is concemed the conviction is based on circumstantial evidence and mainly on the basis of last seen theoiy. In the present case dead body was found as a dead body of unknown person but subsequently it was identiBed -vide identiflcation memo Ex. P-5. On fhe basis of photographs P-13, P-13A, P-13B, P-13C, photograph of Merry Kresencia P-13, virtually in the present case uxiknown dead body was found near Katima Bridge Dumardand was the dead body of deceased Merr;7 Kresencia is not disputed. PW4 Elisaba Khes younger slster of fhe deceased has deposed that on 6th appellant and deceased were present in her house appeUant told her that fhey will go to Gwalior ^. -iy' 14. and deceased will appear in one examination. On 7th at about 8. A.M. deceased and appellant proceeded in front of her house at fhat time deceased was wearin? pink coloiir blouse and sky blue colour sari her sister also used to wear black colour maia with cross. After one month she came to knew fhat her sister was miirdered then her brother PUmohan went to the Police Station and intimated to fhe police. She has also identified the cloths and other articles of her sister as articles A,B,C & D. Anofher witness FW3 Fflmohan brofher of the deceased has deposed that his daughter- in-law (Bahu) Helan told him fhat appellant and deceased had gone for interyiew and afterwards he came to know fhat dead body of his sister was found under Bridge near Katima. He also searched his sister on fhe basis of photograph. He identified the deceased, he has lodged the report Ex. P-6. He has also identified the articles ofhis sister. Dead body ofthe deceased and cloths of fhe deceased has not been substantially disputed. In the present case evidence of PW3 Filmohan reveal that he has not seen fhe deceased tn fhe company of the appeUant alive last time and fhereafter the dead body of fhe deceased was foiind but lus daughter-in- law Helan has seen fhe appeUant and deceased alive ^..--SSi!.., ^ last time together, Prosecution has not examined the daiighter-in-law Helan of PW3 Filmohan to unfold fhe story. .15. PW4 Elisaba Khes sister of the deceased has admitted in para-18 of her cross examination fhat virtually she has not seen the deceased m fhe company of fhe appellant last tune at moming but on previous day at evening, her sister deceased Meny Kresencia. came to her house. She also admitted m para-20 of her evidence that her sister was residing at Delhi alone in relation with the service. 16. The dead body of fhe deceased was found on 11/3/98 within 5 days of ftie alleged last seen story. According to evidence of prosecution appeUant was residing at Gwalior he came from Gwalior and he went to Gwalior. PW8 Ku. Sabina nlece of the deceased has deposed in her evidence fhat the deceased was working as midwtfe at DeUii and accused was residing at Gwallor in fhe monfh of October fhe deceased came to her village Ambatoli. She stayed ui her house, appeUant alsa came to her house and stayed tn her house. After som.e time appeUant proceeded for GwaUor at about 8 A.M. and after one week fhe deceased proceeded for Dettii at about 8 A.M, she proceeded for Delhi alone but she did not came back and her dead body was found. ..^ -^^ ?^ss Prosecutiion has declared this wltaess hostile but in her cross exammation prosecution has not illicit anyfhin^ to show (hat apF»eUant and deceased proceeded for Gwalior together. 17. Prosecution has adduced another set of evidence relating to recovery of weapon at the instance of appellant. PW7 S.N. Tripathi, Sub Inspector has deposed in his evidence that on ttie basis of susplcion of fhe cominission of the offence by fhe appellant he searched about the appeUant On 4/8/98 mterrogated the appellant who made disclosure statement of fhe cloths and krufe vlde Ex. P-7, He produced the knffe from shrub inider liimp of earfh {Dhelci^ which he seized vide Ex. P-8. Kiiife was exammed and presence ofblood was coiifinned vlde Ex. P-12. Ofher cloths were seized earlier. PW6 Shyam Narayan has also deposed that appellant made disclosure statement of knife and he produced knife it was recovered vide Ex. P-8. According to fhe case ofthe prosecutlon deceased dled as a result of ante-mortem mjiuy between 7/3/98 to 11/3/98 in the month of March-1998. Dead body was found pn 11/3/98. One trouser was recovered near the spot vide Ex. P-2 on 25/3/98, again on 19/6/98 one petticoat and sari was seized vide P-29 the place where dead body was found is a canal under the bridge. ^ 10 Appellant was taken into custody on 4/8/98 and knife was recovered from fhe south part of the canal on 4/8/98 under lump of earth [Dhelc^ admittedly the monfh of August was ralny season but the disclosure statement and recoveiy memo reveal fhat lump of earfh [Dheld) was not dissolved in ramy season specially when same was within canal and presence ofblood was confirmed in (he knife vide Ex. P-12. 18. In fhe present case according to the case of fhe prosecution speciaUy the evidence of PW3 Filmohan Helan, daughter-in-law of PW3 FUmohan has seen the deceased in the company offhe appellant last time alive thereafter the dead body of the deceased was found within 5 days. According to Para-18 of the evidence of PW4 Elisaba Khes she has not seen fhe accused and deceased last tiine together. Prosecution has not adduced any evidence to show that who has seen fhe deceased in the company offhe appeUant aMve last time and fhereafter fhe dead body of the deceased was found. In absence of such evidence it is dtfiicult to hold fhat deceased was seen in fhe company ofthe appellant last time aMve and thereafter she was found dead. 19. Prosecutlon has adduced another set of evidence adduced relatmg to recoveiy of weapon on the basis qf disclosiire statement made by fhe appeUant. In fhe / i^flf; ^^®SB >-i..-"-' 11 present case accorduig to fhe case of the prosecution appeUant was working at Gwalior deceased was worktng at DeUii. The dead body of deceased was found on 11/3/98. Appellant was taken into custody on 4/8/98, after lapse of more fhan 4 % years. Prosecution has not adduced any evidence to show that from 11/3/98 ffll 4/8/98 whefher fhe appeUant was absconding or why prosecution has not interrogated fhe appeUant prior to 4/8/98. During rainy season lump of earth (£>he?a) was found intact- the place where the dead body was found was searched first tune on 11/3/98 second time on 25/3/98, 3rd time on 19/6/98 4(b time on fhe basis of disclosure statement made by the appellant on 4/8/98. It reveal that prior to alleged recovery of knife Investigating Ofiicer has searched the place of inddent fhrice but no kntfe was foiind and on the basis of disclosure statement krufe was recovered fi~om the place of incident inside the canal at fhe time of heavy rainy season in the monfh of August -1998 and even blood was found over fhe knife. In fhe present case if fhe recovery ofknife on the basis of disclosiire statement of the appeUant is accepted then even aforesaid crrcumstances casts serious doubt about fhe genuineness of recoveiy and the disclosLire statement. /J ^1 •..^-." ,f ^,,. .:•• v*s ^^s'- ^s;^®"'"' a\ !j 8 12 'r^ Knowing weU the fact that deceased has left the vUlage along with appeUant prosecution has not made any attempt to knew whereabouts of appellant for more than 4 % years. 20. In the present case aforesald bofh the sets of evidence and chain of circumstances does not uispire confidence and safe to rely and even bofh fhe chain of circumstances is not sufficient for drawing presumption that appellant was a person who has committed the murder of his vrife. 21. After appredating fhe evidence avaUable on record leamed Sessions Judge has convlcted and sentenced the appellant under Section 302 of the Indian Penal Code on fhe basis of evidence of PW3 FUmohan and PW4 Elisaba Khes but aforesaid both fhe witnesses had virtuaUy deposed nothing substantiaUy against the appellant. Court below has not seriousty sCTuttnized and the evidence ttiereby committed aa illegality. 22. In our considered vlew fhe convlction of the appeUant is not based on legal evidence sustainable under fhe law. Consequently, fhe Griminal appeal is allowed. Conviction and sentence of the appellant under Section 302 offhe Indian Penal Code is hereby set aside. He be set at liberty at once. Sd/- T.P. Snarma Judge Sd/- R.L. Jhanwar Judge -/uzrzoio