HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA & HON’BLE MR. R.L. JHANWAR, JJ. Criminal gppeal No. 682/2005 APPELLANT Heera Singh S/o Dev Sai Lohar (In Jail) Aged—about—4O years, R/ o Jhinpuri, Thana Pasaan, Tahsil Katghora, District—Korba [(3. G. ]. RESPONDENT State of Chhattisgarh Through Station House Oiiicer Korba, Chowki—Passan, Disttr Korba [C.G.]‘ APPEAL UNDER SECTION 374 l2! OF THE CODE OF CRIMINAL PROCEDURE. Presentz— Ms. Sangeeta Mishra, Advocate for the appellant. Mr‘ Arum Sao, G.A. for the State/respondent. ORALJUDGEMENT (Passed on 15/12/2010) The following judgment of the Court was passed bv T.P. Sharma, J:— 1. Challenge. in this appeal is to the judgment of conviction and order of sentence dated 11/8/2005 passed by Additional Sessions Judge Korba, C.G. in Sessions Trial No. 116/04 whereby-and where under after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of his wife Mankunwar while acquitting other co-accused ' Shiv Narayan and Shiv Kumar convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life and fme of Rs. 1500/- in default of payment of flne amount additional rigorous imprisonment for 6 months. Conviction is impugned on the ground that Without any iota of evidence suiiicient for conviction of appellant Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of the prosecution, deceased Mankunwar wife of appellant was residing with appellant. On 26/6/ O4 she was present with appellant in the house of appellant thereafter on 28/6] 04 her dead body was found hang'ng in the tree, same was seen by two persons then appellant along with two persons went to the Police Station and lodged Marg intimation vide Ex. P—12. On the basis of Ex. P— 12 finally First Information Report Exs. P—6 8r, P—7 were recorded. Investigating Officer left for scene of occurrence, after summoning the witnesses vide Ex. P— 14. After getting down the dead body of Mankunwar from hanging position inquest over the dead body of Mankunwar was prepared vide Ex. 13—15. Dead body was sent for autopsy to Primary Health Center, Pondi vide Ex. P—16. PWIO Dr. UmeSh Kumar Markam conducted autopsy vide EX. P— 19 and found following symptoms:- (i) Ligature mark was found around the neck of 30 C.M. x 2 C.M. (ii) Sign of knot was found on back side of neck. (iii) Internal partS'of the body was congested. (iv) Body was decompoeed; Cause of death was cardio respiratOIy arrest because of asphyxia due to strangulation of neck. During course of investigation, spot map was prepared vide Ex. P‘3. Patwari also prepared spot map vide Ex. P—5. Co—accused Shiv Narayan and Shiv Kumar and present appellant were taken into custody. Appellant made discloser statement of Sari vide Ex. P— 10. 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, Katghora who in turn committed the case to the Court of Sessions, Korba from where learned Additional Sessions Judge Korba has received the case on transfer for trial. In order to prove the guilt of the appellants prosecution examined as many as 10 witnesses. Appellant and other co—accused persons were examined under Section 313 of the Code where they denied the circumstances appearing against them, innocency and false implication are claimed. After aITording an opportunity of hearing to the parties learned Additional Sessions Judge, Korba while acquitting other twb accused persons convicted and sentenced the appellant as aforementioned. 8. Ms. Sangeeta Mishra, learned counsel for the appellant and Mr. Arun Sao, Govt. Advocate for the State/respondent are heard. Judgment impugned and record of the Court below perused. Learned counsel for the appellant vehemently argued that in the present case prosecution has not proved homicidal death of deceased Mankunwar, in absence of such prove appellant can not be held liable for commission of murder of Mankunwar. Learned counsel for the appellant further argued that as per evidence of PW 10 Dr. Umesh Kumar Markam who has conducted autopsy, he has found Ligature mark around the neck of deceased. Sign of knot was found on back side of the neck. Internal parts of the body was congested but he has opined that cause of death was strangulation but in his cross examination, he has admitted that in case of hanging symptoms what he has noticed also found in the dead body. kc 11. Learned counsel for the appallant further argued that aforesaid symptoms are symptoms of death as a result of asphyxia. PWIO Dr. Umesh Kumar Markam has opined that the cause of asphyxia in the present case is as a result of strangulation but in his cross examination he has admitted that symptoms found in the dead body very basis of the case of strangulation also found in case of suicide as a result of hanging. Ligature mark was found in the dead body along with other symptoms. If the' death was as a result of strangulation and thereafter body was hanged then prosecution was under obligation to prove the fact that except any specific injury found over the neck suggestive of factum of strangulation rest injuries were postmortem in nature but prosecution has not adduced any material to prove the aforesaid facts, in absence of any definite evidence that ligature mark and other injuries found over the body were postmortem in nature and in absence of definite injury of strangulation conviction of the appellant is not sustainable under the law. 12. Lemned counsel for the appellant further argued that appellant has offered reasonable explanation about death of his wife. He is not required to prove his /v explanation like case of prosecution. ‘:a ' ‘a Eta x. d On the other hand, learned Govt. Advocate for the State/ respondent opposed the appeal and submits that present appellant has caused homicidal death of Mankunwar. He has not offered any explanation that why his wife died and in which circumstances she has died. After appreciating the evidence available on record Court below has rightly convicted and sentenced the appellant as aforementioned. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 15. As per claim of appellant, we have examined the evidence of PWIO Dr. Umesh Kumar Markam, as per undisputed facts of the case dead body of Mankunwar was found hanging in tree after two days of her leaving the house of appellant. As per defence of the appellant deceased Mankunwar wife of appellant was mentally perturbed. On 26/6/04 she had left his house at night and second day she was not found on third day her dead body was found hanging in tree when he came to know aforesaid facts then he along with other persons went to the Police Station and lodged report. 16. As per evidence of PW 10 Dr. Umesh Kumar Markam ligature mark of 30 QM. X 2 C. M. was found around the neck, sign of knot was found on the back of neck. Internal parts of the body were congested. Cause of death was cardio respiratory arrest as a result of asphyxia on account of strangulation in neck. In his cross examination he has specifically admitted that symptoms found on the dead body of Mankunwar also found in case of death by hanging as a result of suicide. PW 10 Dr. Umesh Kumar Markam has not noticed in his autopsy report Ex. P— 19 relating to any mark of strangulation or pressing of neck other than the ligature mark. He has not stated anything in his evidence relating to any postmortem injury over the dead body. On the basis of evidence 0f PWIO .Dr. Umesh Kumar Markam it is difficult to hold that ligature mark found over the body and other injury were postmortem in nature or any injury of strangulation found in the body of the deceased. In these circumstances it is difficult to hold that death of Mankunwar was homicidal in nature. 17. In order to prove the charge of murder punishable under Section 302 of the Indian Penal Code prosecution is under obligation to prove first and most essential ingedient of the offence that death was homicidal in nature. In absence of prove of such ingedients i.e. homicidal death, question of motive or theact of appellant or any person becomes irrelevant, while convicted the appellant under Section 302 of the Indian Penal Code learned Additional Sessions Judge, Korba has not considered the aforesaid facts and requirement of the law and thereby committed an illegality. For the foregoing reasons, we are of the considered View that conviction of the appellant under Section 302 of the Indian Penal Code is not sustainable under the law. Consequently, criminal appeal deserves to be allowed and is hereby allowed. Conviction and sentence of the appellant Heera Singh under Section 302 of the Indian Penal Code is hereby set aside. He be set at liberty at once. He be released if not required in any other case. ’ 'T‘P. SHARMA. ‘X r Judge Sd/- R.L. Jhanwar SW- Judge ' l l l