3 HIGH COURT OF CHHATTISGARH, BILASPUR D.B.: HON'BLE SHRI SUNIL KUMAR SINHA & HON'BLE SHRI R.N. CHANDRAKAR. JJ. Criminal Appeal No. 1552ofl994 Ghi-irau Vs. State ofM.P. (Now State of Chhattisgarh) JUDGMBNT l.'- For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE R.N. CHANDRAKAR c<jS£^T-e^- (I Sd/- R.N. Chandrakar Ju^ge Post for Judgment : 2-4/0 1/2011 Sd/- Sunil Kumar Sinha Judge ! :l:Ui...: t:. •*s^. r il '• it';i5?"-:>, E^^i ^^ HIGH COURT OF CHHArTISGARH AT BILASPUR D.B.: HON'BLE SHRI SUNIL KUMAR SINHA & HON'BLE SHRI R.N. CHANDRAKAR. JJ. Criminal Aoneal No. 1552 of 1994 APPELLANT RESPONDENT Ghurau S/o Phaguram Kolta, aged about 28 years, occupation agriculturist, resident of village Jarideeh, P.S. Tamnar, Dista-ict Raigarh, M.P. (Now Chhattisgarh) Versus State of M.P. (Now State of Chhattisgarh) Through S.H.O. Tamnar APPEAL UNDER SECTION 374 (21 OF THE CODE OF CRIMINAL PROCEDUKE Aotiearance : Mrs. Indira Tripathi, Advocate for the appellant. Mr. JameelAKhtar Lohani, Panel Lawyer for the State. JUDGMENT (24.01.2011) Following judgment of the Court was delivered by SunU Kumar Sinha. J: (1) This appeal is directed against the judgment dated 21st of October, 1-994 passed in Sessions Trial No. 283/93 by the Second Additional Sessions JudgeF'Raigarh. By the impygned judgment, the appellant has been convicted u/ss 302 & 201 IPC and sentenced to undergo imprisonment for life 85 R.I. for 2 years. 1 :t*','"'"ce'!l "%i, /^ ^. ^ 1 ^:;%», "BB.,«SS Criminal Apoeal No. 1552 of 1994 9 (2) The facts, briefly stated, are as under:- Deceased- Kalakanti Bai was wife of the appeUant. Ishweu- Prasad (PW-11) was a close relation of the appellant. The case of the prosecution is that on 7.9.93 at about 10.00 p.rri., the appeUant saw his wife in compromising position with Ishwar Prasad. Thereafter, he took her inside the room and caused her death by strangulation. Later on, the appellant and co-accused- Tejrara (real brother of the appeUant) threw the dead body in an unused weU with intention to screeri the evidence of murder. The body was found on 9.9.93 at 5.00 p.m. A merg intimation (Ex.-P/lS) was lodged by the appellant. The appellant stated in the merg intimation that when he saw his wife in compromising position with Ishwar Prasad (PW-11), he had slapped her wife. Thereafter in the next moming, she left the house saying that she is going to her parenfs place and then her dead body was found in the weU. as above. The Investigation Officerreachedto the place of occi.irrence, gave notice to the Panchas and prepared inquest (Ex-P/5) on the body of the deceased. The dead body of the deceased was sent for post- mortem to PHC, Tamnar, where fhe post-mortem examination was conducted by a teara of 2 Doctors, including Dr.A.K. Mishra (PW-1). They found injuries on the body, partici.ilarly on the neck. There were fractures on IInd Ss, IIIrd ta-acheal rings. They opined that the cause of death was compression upon the throat i.e. strangulation and it was homicidal in nature. The post-mortem report is Ex.- p/1)./ During the cojirse of investigation, first 161 Cr.P.C. statement (Ex.-D/S) of Ishwar Prasad (PW-11) was recorded on 10.9.93. It is on disclosure of Ishwar Prasad (PW-11), the prosecution came with the above case against the accused persons^ Criminal Aweal No. 1552 of 1994 The leamed Sessions Judge relied on the testimony of Ishwar Prasad (PW-11) and convicted and sentenced the appellant as aforementioned. However co-accused- Tejram facing the charge of 20 1 IPC only, was acquitted. (3) Mrs. Indira Tripathi, learned counsel appeanng on behalf of fhe appellant, argued that Ishwar Prasad (PW-ll) was whoUy unreliable. He did not support the case ofthe prosecution at trial, therefore, he was declared hostile and the Assistant Public Prosecutor (A.P.P.) was allowed to cross-examine him. Even after the cross-examination, nothing material could be brought on record on which the appellant could have been convicted. (4) On the other hand, Mr. Jameel Akhtar Lohani, leamed Panel Lawyer appearing on behalf oftheState, opposed these argiunents and supported the judgment passed by fhe Sessions Court. (5) We have hesird the leamed counsel for the parties at length and have also perused the records of fhe sessions case. (6) Ishwar Prasad (PW-11) deposed that the accused persons and deceased-Kalakanti Bai were residing together. Deceased was devrani of his sister. He had gone to their house as a guest. He was residyig'in their house since last 15 days. He was present in the house on the date t^incident. On the fateful night, the appellant assaulted the deceased. Thereafter he mounted himself on the chest of the deceased and he pressed her neck with fhe help of a danda. Deceased was crying. When he went there, the Criminal Acoeal No. 1552 of 1994 ^ appellant was sitting on the chest of the deceased and was pressing her neck. He asked the appellant as to why he is doing like that, on which, he threatened him to life. After such evidence, in exammation-in-chief, he was declared hostile by the Assistant Public Prosecutor (A.P.E.) and was aUowed to cross-examine by the A.P.P. In the cross-examination ofA.P.P., he admitted that the deceased was issueless, therefore, she made physical relations with him. In the cross-examination by the defence counsel, he admitted that he stated before the police that he had seen the appellant sitting over the chest of the deceased and pressing her neck. Ifthese facts are missing in his 161 statement (Ex.-D/S), he cannot teU fhe reason for them. There are other omissions also in his case diary statement. The Sessions Judge observed that there is another case diary statement of Ishwar Prasad (PW-11) which was recorded on 16.9.93 and the omissions are there in fhe said statement also. According to Ishwar Prasad (PW-11), he saw the incident on 7.9.93 at 10.00 p.m. and the dead body was found in the well on 9.9.93 at 5 p.m., but he did not disclose these facts to the police or any other person of the viUage at the time of investigation. His first 161 statement was recorded on 10.9.93 and the second statement was recorded on 16.9.93. In his / statement (Ex.-D/S) which was recorded on 10.9.93, he did not ''-» depose that he had seen the appellant sitting on the chest of the deceased and pressing her neck by the danda. This was a vital omission in the 161 statement of fhis witness. He was declared hostile by the prosecution as he has not supported the case of the Crinrinal Appeal No. 1552 of 1994 ^6 prosecution and even after his lengthy cross-examination nothing material could be brought on record by the A.P.P. Even we find in the judgment Para-20, that on the above conduct of Ishwar Prasad (PW-11), fhe Sessions Judge himselfhas observed that he was not fuUy reliable and it was not safe to rest the conviction on his testimony. Even after all this, the testimony of this witness was relied by the Sessions Court and the appellant was convicted as aforementioned. (7) On appreciation of the entire evidence of this witness, we find that his testiniony was not reliable and the Sessions Judge erred in law in resting the conviction on such testimony of Ishwar Prasad(PW-ll), (8) For the foregoing reasons, we are iinable to sustain the conviction of the appellant. Therefore, we allow this appeal and set-aside the conviction and sentences awarded to the appellant u/ss 302 & 201 IPC. The appeUant is acquitted of the charges framed against him. The appeUant was taken into custody on 17.9.93 and was released on bail on 5.2.2003 by order of this Court passed on 27.1.2003. Presently, he is on baU. His baU bonds are cancelled^and surety stands discharged. / ~T . Sd/- Sunil Kumar Sinha Judge 4—- Sd/- R.N. Chandrakar Judge vatti BJI: BUB