«was: HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE, 1973. x Present— Mr. R.N. Jha, Advocate for the appellant. ’ Mr. Rakesh Jha, Dy. G.A. for the State/respondent. \ The following iudgment of the Court was passed bV T.P. Sharma, J:— l. Ch'allenge iri this appeal is to the judgment of conviction'and order of sentence dated 9/5/91 passed by Additional Sessions Judge; Bastar at Kanker in Sessions Trial No. 301/90 whereby and where under after holding the appellant guilty for the commission of culpable homicide amounting to murder of deceased Q Somji convicted the appellant under Section 302 of the ORAL-JUDGEMENT (Passed on 23/03/20 10) l ‘ r —\=Er:_.,m , ., , ; 5‘ y LIN): i—eex Lam“. A DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA 85 HON’BLE MR. R.L. JHANWAR, JJ. CRIMINAL APPEAL No. 677/91 APPELLANT/ Tulsi, son of Mohan Singh Ojha, APPLICANT aged 25 years, Agriculturist, R/o Village— Imlipadar, Thana— Nayayanpur, Distt.— Bastar, M.P. Versus RESPONDENT State of Madhya Pradesh, through Police Station— Narayanpur, Distt.— Bastar. Indian Penal Code and sentenced rigorous imprisonment for life. Conviction is impugned on the ground that Without any iota of evidence sufficient for conviction, Court below has? convicted and sentenced. the appellant as aforementioned and thereby committed an illegality. 3. Brief case of the prosecution is that on fateful night of 11/3/90 on account of previous dispute at about 10 p.m. appellant assaulted Somji near the house of PW4 Anita by axe and caused his death. PW4 Anita lodged First Information Report vide’ Ex. P—S and Marg was, recorded ‘Vide EX. P—ll. Investigating Officer left for ”scene of occurrence, after summoning the Witnesses Vide’ Ex. P—6, inquest. over ,the dead body Aof the deceased ‘Somji was prepared’vide Ex. P—7. Dead body was sent for > autopsy- to Block Medical Officer, Narayanpur. Autopsy was conducted by PW3- Dr. G.S., Rath‘ore vide EXP—4 and foundfollowing injuries:— (i) - Incis‘ed wound over left occipital region of 4" x 1/2” x 1A”. (ii)Linear fracture of occipital bone of 2”' length. (iii) , ,Hem‘orrhage ‘pres’ent clotted and fresh inside” cranium.- ' ‘ (iV)Rupture of brain membrane. Mode of death was v shock and death was homicidal in nature.- . E 4. Blood stained and plain soil and Gulal were recovered from’the spot vide EX. P—3. One axe Was recovered from; ' :1 the accused Tulsi Vide Ex. P—8. Blood stained Clothes of the accused were seized from accused Vide EX. P—9. Blood stained cloths of Nohru were seized Vide EXA‘P— 10. Sealed cloths of the deceased were seized Vide EX. P-13. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Narayanpur who in turn committed the case to the Court of Sessions, Bastar at Kanker. Learned Additional Sessions Judge, Bastar at Kanker received the case on transfer for trial. In order to prove the guilt of the appellants/accused prosecution examined as many as 7 witnesses. Accused along with co—accused Nohru were examined under Section 313 of the Code where they denied the circumstances appearing against them, innocency and false implication is claimed. After affording an opportunity of hearing to the parties learned Additional Sessions Judge, Bastar‘at Kanker while acquitted the co—accused Nohru, convicted and sentenced the appellant Tulsi as aforementioned. Learned counsel for the appellant Mr. RN. Jha and learned counsel for the State/respondent Mr. Rakesh 9. Jha,-Dy. G.A. are hea¥d. Judgment im1$ugned and record of Court below perused. K Learned cOunee1_ for the appellant vehemently argued that‘ease is based on evidence of eye Witnesses PW4 An1ta 8L PWS Balsay but both the w1tnesses have spec1f1cally adrmtted 1n the1r cross exam1nat1on that they have not seen the 1nc1dent therefore on the bas1s of evidence of aforesaid w1tnesses convrct1on of the appellant is not sustainable under the law. On : the: other hand, learned counsel for the respondent/State opposedthe appeal and submits that alth‘oughtthere is some discrepancy in the evidence of xPW4 Anita 81, PW5 Balsay but still their evidence inspire confidence, trustworthy and safe to rely. In order to apprec1ate the argument advanced on behalf ' of the parties we have exammed the ev1dence adduced on behalfof the prosecution. In the present case, homicidal death as a result of ante— mortem ‘fatal injury of deceased Somji has not been substantially disputed by the appellant, on the other hand, also established by the evidence of PW3 Dr G.S. Rathore and autopsy report vide Ex. P—4 which reveals _ -that fatal injury was foundvover the body pf Somji and death was homicidal in nature. 10. ll. l2. ' 0 ' 13. As regard the complicity of the appellant in crime is question is concerned, conviction is substantiallybased on ‘the evidence of PW4 Anita corroborated by the PWS‘ Balsay. PW4 Anita has deposed in her evidence that Somji Who was Watchman in Vivekanand Ashram came to he‘r village to celebrate the Holi festival. He celebrated Holil‘estival with her byusing Gulal. ‘He was present in the village it was highly objected by the appellant Tulsi who slapped Somji then at night lO p.m. while she was sleeping in her‘house, people shouted then at the instance of her father PW5 Balsay she woke ,up and came out from her house; At that time appellant Tulsi w’as assaulted Somji by axe and caused injuries to him; ‘ Somj’i fell down and died.‘ In Para—8 of her detail'cross— examination she has admitted that after hearing the Sound her father came out from the house and she was inside thehouse, the dead body of Somji was lying 1‘00 r meter away from his house. She has specifically / admitted in Para—8 of her cross—examination that she' has not seen the incident but she has only seen the, ~dead’ body of Somji evenrshe has not told the incident to KOtwar’and Patel that appellant has assaulted Somji. v . v, 1-4. PW5 Balsay (father of PW4 Anita) has dep0sed in his evidence that at about lvlf p.m. after hearing the sound. a he along‘with .his- daughter PW4 Anita came out from: the house, at that time appellant was assaulting Somji by axe; Somji fell down on the land then thereafter he died but in Para—4 of his cross—examination he hé’s specifically admitted that he has heard cry of cattle (i.e. Goats and Hens) but he has not heard the soundof any person. He did not come from his house and he had not seenrthe incident, only seen the dead body of Somji. Evidence of these witnesses clearly reveals that they have seen'the dead body of Somji but they have not seen the incident particularly they have deposed in their ,chief" on the basis of quarrel of'appellant‘Tulsi with Somji and the fact that appellant was having ~‘ grudge against Somji only on the basis of previous enmity or previous quarrel the presumption of causing murder could not be position in absence of other cogent, evidence, except the evidence of aforesaid two witnesses prosecution has not adduced any other evidence 'to ‘ connect the appellant in crime in question. In absence ‘- of other evidence and the evidenCe of PW4 Anita 85 PWS Balsay the conviction of theappellant under Section I 302 of the Indian Penal Code is not sustainable under I the law. While convicting the appellant under/ Section ‘ ' 302 of the Indian Penal Code by the Court belpw, Court below: hasnot considered thematerial fact deposed by ' O9 7 aforesaid Witnesses in their cross—examination and thereby committed an illegality. 15. For the foregoing reasons, we are of the considered View that conviction and sentence of the appellant is not sustainable under the law. Consequently, this criminal appeal is allowed. Conviction and sentence of the appellant ’I‘ulsi is hereby set aside. He be set at liberty V \ \ ,ere l \i V, / at once. // ;: M l‘ , f \z \ Sty- \ Sd/- ‘ R.L. \ 'T.P. Sharma :r/Z//’\ Judge ' \ V K JJzanwallr: 4% u ge i l Vi l ‘7 .\ .. w, I