Division Bench : Hon’ble Shri L.C. Bhadoo & Hbie S J 1 -8-2007 Shri J.K. Shastri, counsei fo the appeHant. Shri Ashish Shukla, Addl. P blic Prosecutor for the State. Heard. Oral judgment dictated on d s. L.C. Bhadoo. J . The accusediappeiiant has referred this appeal against the judgment of conviction and order of sentence d ted 28-7-2001 passed bv Second Additional Sessions Judge, Jashpur Nagar, i Sessions Trial No.5512001 whereby he has been held guilty under Section of the lndian Penal Code for committing murder of Piyush Bogi and sentenc d him to undergo imprisonment for life. 2) The case of the prosecuti , in brief, is that in the night of 15-8-2000 deceased Piyush Bogi was at his r sidence whereas his wife Beronika (PW-1) on’ hri Suni! Kamar Sinha J 3 o APPELLANT Am aldas Tirkey, S/o Martin Tirkey, aged ab ut 23 years, Ric Vinage Parasoom, P.‘.H. Sanna, Distt. Jashpur Nagar (CG). -Versus- RESPONDENT Sta e of Chhattisgarh Through P.S.H. Cffl er, P.SVH. Sanna, DER Jashpur Naga: (C ) (Appeal under S ction 374(2) of the Cr.P.C.) Q g XI—HC—78 'mwm w m had gone to his daughter’s ce for consuming hadia (intoxicant) and slept ihere. At about 10.00 pm. in e night, Piyush Bogi (since deceased) came to the house of his son-in-iaw fen down in front of the door. Hearina the sound of Piyush Bogi, his da ghter, son-in-Iaw & wife came out of the room. He informed them that Ama has attaoked him with barber’s knife on his neck and after pouring keros ne from smaii lamp (chimney) set him on fire, suspecting him to be practici g witchcraft They took Piyush Bogi inside the room. in the morning of 16-8 00, PW-2 Paskai, son-in-iaw of the deceased informed the villagers about the incident. Matter was reported bv PW«1 Beronika, wife of the decease , at Police Station Sanna under Ex.Pl1. On the basis of which offence under S ction 307 of the IPC was registered against the accused. Merg intimation (E .Pl16) was given from Primary Health Centre, Senna, by Constable Puniyr . Based on that the offence was converted to Section 302 of the IPC. eafter Station House Officer, Police Smtion Sanna, took up the investiga on prepared inquest (Ex.Pl3) on the body of Piyush Bogi. During investigat n the Investigating Officer took into possession the blood stained & plain soil, one kerosene lamp, match box containing four sticks and one mat under Ex. 35'. One container of Parachute Coconut Oil fixed with wick (bathD under .P/6. Clothes of the deceased were seized under EXP/7. The weapon of ffence, barber’s knife’ was seized under EXP/8. Site plan (Ex.Pl11) was prepa d by the Halka Patwari. Body of Piyush Bogi was sent for postmortem exa ination to the Primary Health Centre, Sanna, where Dr. Ranjit Toppo (PW ) conducted postmortem and prepared report (EXP/14). marked protein fluid loss result increase Doctor opined th t the cause of death was due to extensive burn leads severe pain a . a ‘ d l s 0 - a T r x n XI-HC~78 WWW ammm Death was homicidal in nature. Knife in question was sent for examinatio under EXP/15 to Doctor. After examining the same, Doctor gave report an opined that the injury on the neck of Piyush Bogi can be caused by the knife i question. 3) After completion of investi tion, charge sheet was tiled in the Court of Chief Judicial Magistrate, Jashpur Nagar, who in turn committed the case to the Court of Sessions Judge, Raig rh, from where learned Second Additional Sessions Judge, Jashpur Nagar, r ceived the same on transfer for trial. 4) in order to establish the charge against the accused/appellant. the prosecution examined 7 witness . Statement of the accused was recorded under Section 313 of the Code o Criminal Procedure in which he denied the material appearing against him James Kujur (0W4) in his defer that Piyush Bogi was already dean took him inside the house and retur 5) Learned Additional Sessic respective parties, convicted a aforementioned. 6) We have heard learned coul 7) in this case, there is no oc capillary permeability leads shoc . lar or direct evidence. The conviction rests on the circumstantial evidence i.e orai dying declaration. There is no other evidence to connect the accuse with the crime in question. As per the ned. rsel for both the parties. the prosecution evidence. He examined ce, who has stated that on 15-8‘2090 the family members of Piyush Bogi were weeping, therefore, he went there; saw and lying in the courtyard of the house. He ns Judge after hearing counsel for the 3d sentenced the accused/appellant as mw agr' prosecution case and the First ‘nformation Report given by PW—1 Beronika, wife of the deceased, the deceas ed made oral dying deciaration before his wife Beronika (PW-1) & son-in-law Phaskal (PW-2), but both of them have turned hostile. 8) PW~1 Beronika, wife of deceased, in her examination-in-chief has not stated anything that her hus and made oral dying deciaration before her. On the contrary, she has ,stated t at in the night, her husband came to her son- in-law's house in burnt condition. There was an injury in front of his neck. The deceased did not disclose anyt ing at the residence of his son-in-law. On cross-examination by the Govern ent Pleader, she stated that on enquiry her husband informed that Amaldas ad attacked him with a knife and set him on fire after pouring kerosene from . ln para 5, she has stated that the matter has been compromised and it ha been decided to ensure that the accused is acquitted. In para 6 of her cross examination by the defence, she has stated that her husband came at the doo of the house of her son-in-law and fell down. He did not disclose anything to t em. They also did not disclose anything in Police station. Similar is the e idence of PW-2 Paskai, son-in~law of the deceased. ln examination-in-chi f, he has not stated that Piyush Bogi made any oral dying declaration. Howe er, on cross—examination by the Government Pleader, he stated that Piyush Bogi (deceased). disclosed that Amaldas attacked him with knife and set h on fire. ln para 9 of his cross-examination by the defence, he has turned ho tile. He has stated that Piyush Bogi did not say anything regarding his death. 9) PW-4 Shanti Khalkho, dau hter of the deceased, has stated that in the night of 15-8-2000 they were in t eir house. Her father was lying outside the t l p i WWW W Harm mm wml? mmmm animm gate. When they came out of the room they saw that there was a cut injury on the neck of her father and body burnt, therefore, thev took her father inside the room. On enquiry, her father isclosed the name of Amaldas and said that Amaidas is saying him that he s practicing witchcraft that is whv he has attacked him. in cross-em‘minati n, she has stated that in the night they did not disclose about the incident t anybody. After hearing her cries, James Ku_iur came to their house in the ght, but he has not been examined by the prosecution. He has been exami ed as defence witness. who has stated that he heard the cries of family memb rs of Piyush Bogi, he went towards that side and saw that Piyush Bogi was i ing dead. Except the evidence of Shanti Khaikho (PW-4) there is no other 10) PW-1 Beronika, wife of th deceased and PW-2 Paskai, son-in-law of the deceased & husband of PW-4 hanti Khalkho, have stated that Piyush Bogi did not disclose anything to them that who attacked him and who set him on tire, whereas PW-4 shanti Khaikh has stated that her father was lying outside and they took him inside the ro . He discloses that Amaldas attacked him. But when the wife & son-in-law of he deceased have stated that the deceased t to believe the evidence of Shanti Khalkho (PW-4) that the deceased made oral dying declaration. There is no other independent witness. Shanti Kh lkho (PW-4) in her cross-examination has stated that James Ku_iur came to heir house in the night. James Kuiur has been examined by the defence. has stated that Piyush Bogi was already dead and the family members wer weeping. He has not stated anything that Piyush Bogi made any oral dying d claration that Amaldas attacked him. did not disclose anything, it is diff: w s i o I e XI-HC 78 WW,W,W (4x W m 111 200 Wm (W) XI—HC 78 WWW E211 m ln View of the above, it is dm Khalkho and there is no other mate question. Therefore. we are of the Court convictino the accused for c the Indian Penal Code cannot be st 11) 12) In the result, the appeal succ the accused/appellant under Sect' aside; he is acquitted of the said required in any other case. Sd/- ' L.C. BHADOO Judge i i icuit to believe the evidence of PW-4 Shanti rial to connect the accused with the crime in considered opinion that the finding of trial ommission of offence under Section 302 of istained. :eeds. Conviction & sentence imposed upon n 302 of the Indian Penal Code are set :harge. He be set at liberty forthwith, if not Sd/— SUNE KUMAR SINHA Judge