© HIGH COURT OF CHHAmSGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLEMR. T.P.SHARMA& HON'BLE MR. R. L. JHANWAR. JJ. CMMINAL APPEAL N0. 871/2003 APPELLANT VBRSUS RESPONDENT Jagamafh, S/o Jeevan Stngh, aged 30 years, Occupation Agriculturist, R/o Village Kumda Basti, Police Station Vishrampur, District Sm-guja (C.G.) State of ChhatUsgarh, through Police Station Vishrampur, District Sui'guja. CRIMINAL APPEAL UNDER SBCTION 374(21 OF THB CODB OF CRIMINAL PROCEDURE. 1973. Present:- Mr. Jaishankar Pandey, Advocate for the appellant. Ms. Madhu Nisha Smgh, P.L. for fhe State/respondent. ORAL-JUDGBMENT (Passedon 21/01/2011) The followins iudgment of fhe Court was passed bv T.P. Sharma, Js- 1. ChaUenge in this appeal is to the judgment of conviction and order of sentence dated 14/7/2003 passed by First Additional Sessions Judge, Surajpur, Distict Surguja in Sessions Trial No. 457/2002 whereby and where under after holding fhe appellant guUty for the commission of offence of culpable homicide amounting to murder of his wife Sukhmen Bai, convicted the appellant under Section <- 302 of fhe Indian Penal Code and sentenced imprisonment for life with fme of Rs. 1000/-, in default of payment of fine amount, additional rigorous unprisonment for 4 months. Conviction is impugned on fhe ground that without any iota of evidence sufiicient for conviction of fhe appellant, Court below has convicted and sentenced the appellant as aforementioned and thereby committed an UlegaMty. As per case of the prosecution, on fateful day of 18/9/2002 at about 9:00 P.M., appeUant and his wife Sukhmen Bai were quarreling m their house, same was objected by PW1 Bechan Singh 8s PW3 Shobhit Ram thereafter appellant caused fatal injury to Sukhmen Bai and caused her instantaneously deafh. On second day, First Information Report lodged by PW1 Bechan Singh vide Ex. P-1. Marg was recorded vide Ex. P-4. Investigating Officer left for scene of occurrence and after summoning the witnesses, inquest over of dead body of deceased Sukhmen Bai was prepared vide Ex. P-3. Blood stained and plain soU were recovered from fhe spot vide Ex. P-8. Spot map was prepared vide Ex. P-10. Dead body was sent for autopsy to Community Healfh Centre, Vishrampur vide Ex. P-11. PW5 Dr. P.K. Sharma conducted autopsy vide Ex. P-9 and found foUowmg injuries:- ^>--—^^ '^ ..y^^ ^.. ,;./'' ^^^^. '^ 's &. N • ^lfi^ite^.. 1 !^ \ 1 ^s^' ^s^ (i) Multiple bndses over both fhe cheek, nose & upper part of head of 8 c.m. x 4 c.m. x 2.5 c.in. x 2 ara. (ii) Lacerated wound over left side of skull on temporal region of 5 c.m. x 2 c.m. x bone deep. (iii) Multiple bruises & abrasions over left side of neck, left jaw, left ear, left chin & left shoulder of8 c.m. x 4 c.m. x 2 c.m. x 1 c.m. (iv) Multiple bniises & injuries over left hand with fracture of radio ulna bone. (v) Multiple bruises & abrasions of 6 c.m. x 3 c.m. x 2 c.m. x 2 c.m. over hand. (vi) Multiple bruises & abrasions over right side of chest, lower abdomen, left & right buttock, thigh and right knee of 8 c.m. x 4 c.m. x 2 c.m. x 2 c.m. (vii) Hemotoma was found tnside fhe brain. Cause of death was shock and death was homicidal in natiire. During course of investigation, appellant was taken into custody, he made discloser statement of stick vide Ex. P-6 and same was recovered at the instance of appellant vide Ex. P-7. Statement of fhe witnesses were recorded under Section 161 of the Code of Crimmal Procedure, 1973 (in short the Code'). After completion of fhe investigation charge-sheet was filed before the Additional Chief Judicial Magistrate, Sursgpur who in tum committed the case to the Court of Sessions Judge, Ambikapur from where leamed First :,:^^.^,,^ ^^".. .^"^ ,^"s%, y .- ^^!^Si^^ \^/ @ ^~' Additional Sessions Judge, Surajpur, Distdct Surguja has received the case on transfer for trial. 6. In order to prove the guilt of fhe accused/appellant prosecution examined as well as 8 witnesses. Accused was examtned under Section 313 of fhe Code where he denied the circumstances appearmg agakist him, innocency and false unplication is claimed. 7. After afibrding an opportunity of hearmg to the parties, leamed First Additional Sessions Judge, Surajpur, District Surguja convicted and sentenced ftie appellant as aforementioned. 8. Mr. Jaishankar Pandey, leanied counsel for fhe appellant and Ms. Madhu Nisha Singh, P.L. for fhe State/respondent. are heard. Judgment impugned and record of Court below perused. 9. Leamed counsel for the appeUant vehementiy argued ttiat conviction is only based on the evidence of PW1 Bechan Singh & PW3 Shobhit Ram alleged eyewitnesses. As per case of the prosecution, on fhe date of incident villagers were celebrated Karma Festival, they had consumed liquor, deceased Sukhmen Bai has also consumed liquor. PW1 Bechan Singh has deposed in his evidence fhat he has seen the incident but in his cross-exammation he has specificaUy deposed that he has not seen the incident and has stated on the basis of information given by PW3 Shobhit Ram. PW3 Shobhit Ram has categoricaUy deposed fhat he has not seen ftie incident. Prosecution has not collected material to show at the time of cominission of incident, present appellant was present in fhe house and the offence committed in secrecy. In absence of such circumstances, appellant is not under obligation to offer any explanation in tenns of Section 106 of the Evidence Act. 10. Leamed counsel for fhe appellant furfher argued that evidence adduced on behalf of the prosecution is not sufficient for drawing an inference that appellant has committed culpable homicide amounting to murder of his wtfe Sukhmen Bai. 11. On fhe other hand, leamed counsel for fhe State/respondent opposed the appeal and submits that evidence adduced on behalf the prosecution is sufiicient for drawing an inference that appellant has committed culpable homicide amounting to murder of his wife Sukhmen Bai. 12. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 13. In the present case, homicidal death as a result of fatal injuries found over fhe dead body of Sukhmen Bai has not been substantially disputed by the appellant on the other ^^%^^. 1 '^- d^ ^'^ 6 14. hand also established by fhe evidence of PW5 Dr. P.K. Shanna & his autopsy report Ex. P-9 which reveals that cause of death was shock and deatti was homicidal in nature. As per case of the prosecution & finding of the Court below, conviction is substantially based on the evidence of PW1 Bechan Singh & PW3 Shobhit Ram. PW1 Bechan Singh who has lodged First Infonnation Report Ex. P-1 has deposed that at about 8:00 - 9:00 P.M., he was in his house, he heard some quarrel sound from fhe house of appeUant fhen he went to ttie house of appellant along with Shobhit Ram. They knocked the door and directed the appellant to open the door but appellant did not open the door, his wife Sukhmen Bai shouting from inside but in Para-16 of his cross-examination, he has deposed that at about 8:00 - 9:00 P.M., he went for sleeping then he woke up at moming. He was infonned by Shobhit Ram that Sukhnien Bai was died. In Para-24 of his cross- examination, he again deposed that he has not seen ftie uicident. 15. PW3 Shobhit Raui has also not supported fhe case of fhe prosecution. He has deposed in Para-2 ofhis evidence that after headng ftie sound of quarrel of appellant and his wife Sukhoien Bai, he went near the house of appeUant Appellant was quarreling wifh his wtfe Sukhmen Bai, he ..>^'fi^,;. /?^\ 1 j Vt^ tried to intervene then appellant also abused him then he went back to his house. la Para-14 of his cross- examination, he has admitted fhat he has not heard any sound of quarrel; he has not gone to the house of appellant. Evidence of aforesaid two witnesses clearly reveal that they have not seen the incident, fhey have not heard the sound of quarrel even fhey did not knew fhe incident Prosecution has not exammed any other witness in support of the case of prosecution. In absence of any evidence, conviction & sentence of fhe appellant under SecUon 302 of the Indian Penal Code is not sustainable under fhe law. 16. While convicting the appellant under Section 302 of fhe Indian Penal Code, Court below has considered fhe evidence of aforesaid witnesses but has not considered fhe evidence of these witnesses in totality thereby committed an illegality. 17. For the foregotng reasons, conviction 8s sentence of fhe appellant under Section 302 of fhe Indian Penal Code is not sustainable under the law. Consequently, criminal appeal is deserves to be allowed and is hereby allowed. Conviction and sentence of fhe appellant Jagamafh under Section 302 of the Indian Penal Code is hereby set-aside. He be set at liberty at once. He be released forthwith, tf not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge -/A